Erin Gray Environmental Law Outline
Common Law ................................................................................................................................................. 1
Applying Traditional Tort Law in Enviro Cases, pp 68-110.........................................................................................................................1
Palmer v. Nova Scotia Forest Industries, 1983, NS TD ........................................................................................................................................2
Cambridge Water Co v. Eastern Counties Leather Plc, 1993, UK HL ..........................................................................................................2
Smith v Inco, 2011, ON CA (leave to appeal refused) ...........................................................................................................................................2
Understanding the Limits of Traditional Torts in the Enviro Context, pp 110-121 ..........................................................................3
Lynda Collins, “Material Contribution to Risk and Causation in Toxic Torts” (2001) .........................................................................3
Snell v. Farrell, 1990, SCC (flexible application of traditional approach) ..................................................................................................3
Hollis v. Dow Corning Corp, 1995, SCC ....................................................................................................................................................................3
Class Action Suits and Enviro Tort Claims, pp 122-129 ................................................................................................................................4
Christie Kneteman, “Revitalizing Enviro Class Actions: Quebecois Lessons for English Canada” (2010)..................................4
Public Rights, pp 138-162 ..........................................................................................................................................................................................5
Justice B.J. Preston, “The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the
Pacific” (2008) .......................................................................................................................................................................................................................5
British Columbia v. Canadian Forest Products Ltd. (2005) SCC ....................................................................................................................5
Jerry V. DeMaco, Marcia Valiante & Marie-Ann Bowden, “Opening the Door for CL Enviro. Protection in Cda: The
Decision in BC v. Canadian Forest Products Ltd.” (2005) ................................................................................................................................6
Burns Bog Conservation Society v. Canada (Attorney General) (2012) FC................................................................................................6
Andrew Gage, “Asserting the Public’s Enviro. Rights” (2008) ........................................................................................................................7
Constitutional Law ......................................................................................................................................... 7
Overview and the Division of Powers & the Environment, pp 165-172 .................................................................................................7
Adapted fr Constitutional Chapter in M. Doelle, “The Federal EA Process: A Guide & Critique”, 2008 ....................................7
Federalism & the Enviro. in the SCC, pp 173-212 ............................................................................................................................................8
R. v. Crown Zellerbach Canada Ltd., 1988, SCC ....................................................................................................................................................8
Friends of the Oldman River Society v. Canada (Minister of Transport), 1992, SCC .............................................................................9
R. v. Hydro-Quebec, 1997, SCC................................................................................................................................................................................... 10
The Politics and Practicalities of Jurisdiction over the Enviro., pp 212-222 ........................................................................................... 11
William R. Mackay, “Cdn Federalism and the Enviro: the Literature”, 2004 ........................................................................................ 11
Aquaculture, pp 223-228......................................................................................................................................................................................... 12
Morton v. BC (Minister of Agriculture and Lands), 2009, BCSC – aff’d at BCCA ............................................................................... 12
Emerging Issues in Jurisdiction over the Enviro. .......................................................................................................................................... 12
Aboriginal Rights, pp 228-242 .............................................................................................................................................................................. 12
Taku River Tlingit First Nation v. BC (Project Assessment Director), 2004, SCC ................................................................................ 13
Paul v. BC (Forest Appeal Commission), 2003, SCC ......................................................................................................................................... 13
Municipal Jurisdiction, pp 243-257..................................................................................................................................................................... 13
114957 Canada Ltee (Spray-Tech, Societe d’arrosage) v. Hudson (Ville), 2001, SCC ....................................................................... 14
Environmental Regulation ............................................................................................................................ 14
Context and Perspective, pp 260-278 ................................................................................................................................................................ 14
D. Paul Emond, “The Greening of Enviro. Law” (1991) ................................................................................................................................. 14
R. Michael M’Gonigle, “Taking Uncertainty Seriously: From Permissive Reg. to Preventative Design in Enviro
D/Making” (1994).............................................................................................................................................................................................................. 14
Stepan Wood, Georgia Tanner & Benjamin T. Richardson “Whatever Happened to Cdn Enviro. Law?” (2010) .................. 15
Enviro. Standard Setting & Forms of Standard Enviro. Standard Setting, pp 278-285 ................................................................. 16
C. Tollefson, F. Gale & D. Haley, “Setting the Standard” (2008) ............................................................................................................... 16
The Emerging Governance-based Approach to Enviro Reg., pp 285-302 ........................................................................................... 17
Michael Howlett, “Policy Instruments, Policy Styles, and Policy Implementation: National Approaches to Theories of
Instrument Choice” (1991) ............................................................................................................................................................................................ 17
Kathryn Harrison, “Talking with the Donkey: Cooperative Approaches to Enviro. Protection” (1999) .................................... 17
Jody Freeman & Daniel Farber, “Modular Enviro. Reg.” (2005) ............................................................................................................... 18
C. Tollefson, D. Haley & F. Gale, “Setting the Standard” (2008) cont’d ................................................................................................. 19
N. Gunningham, “Reconfiguring Enviro. Reg.: Next Gen. Policy Instruments” (nd) .......................................................................... 19
Enviro. Reg, Innovation and Economic Performance, pp 302-316 ........................................................................................................ 20
Stefan Ambec, “The Porter Hypothesis at 20: Can Enviro. Reg Enhance Innovation and Competitiveness?” (2011) .......... 20
William Lahey & Meinhard Doelle, “Negotiating the Interface of Enviro. and Economic governance: Nova Scotia’s
Enviro. Goals and Sustainable Prosperity Act” (2012) ..................................................................................................................................... 21
An Overview of Cdn Reg. Models, pp 316-327 ............................................................................................................................................... 22
The Fisheries Act ................................................................................................................................................................................................................ 22
Habitat Protection: Subsection 35(1) ........................................................................................................................................................................ 22
Pollution Prevention: Section 36 ................................................................................................................................................................................. 22
R. v. MacMillan Bloedel (Alberni) Ltd., 1979, BCCA (leave to SCC refused) ......................................................................................... 22
R. v. Kingston (City), 2004, Ont CA (leave refused to SCC) ............................................................................................................................ 22
Ian Richler, “R. v. Kingston and the Criminalization of Harmless Pollution” Case Comment, 2005........................................... 22
The Cdn Enviro. Protection Act (CEPA), pp 327-341................................................................................................................................... 23
Adapted from M. Doelle, CEPA and Commentary, 2008 .................................................................................................................................. 23
Great Lakes United v. Canada (Minister of Enviro.), 2009, FC .................................................................................................................... 23
Intro to Compliance and Enforcement, pp 343-358..................................................................................................................................... 24
Joseph Castrilli, “Cdn Policy and Practice w Indicators of Effective Enviro. Enforcement”, 1999 ............................................. 24
[Reg. Enforcement: the Cdn Record] ........................................................................................................................................................................ 24
Jerry V. DeMarco & Toby Vigod, “Smarter Reg.: The Case for Enforcement & Transparency” (2007) ................................... 24
Ecojustice Cda, “Enviro. Enfrocement by Cda’s Fed. Govt (The Essentials), 2011 ............................................................................. 25
Office of the Auditor General of Cda, 2011 Report of the Commissioner of Enviro. & Sustainable Dvpt, 1999 ...................... 25
[Cooperative vs. Adversarial Enforcement Approaches] .................................................................................................................................. 25
Matthew D. Zinn, “Policing Enviro. Reg. Enforcement: Cooperation, Capture & Citizen Suits”, 2002 ..................................... 25
Selected Issues in Enviro. Law Enforcement, pp 358-398......................................................................................................................... 26
[The Role of the Crim. Law as an Enforcement Tool] ........................................................................................................................................ 26
Stanley David Berger, “The Future of Enviro. Prosecution in Ont” (2006) ............................................................................................ 26
[The Role and Nature of the Reg. Offence] ............................................................................................................................................................. 26
John Swaigen, “Absolute Liability Revisited: Levis v. Tetrault”, 2006 ...................................................................................................... 26
Levis (Ville) v. Tetreault, 2006, SCC ......................................................................................................................................................................... 27
[The Prosecution & Defence of Enviro. Charges: Corporate Reg. Liability] .......................................................................................... 27
R. v. Syncrude Canada Ltd., 2010, Alta. Prov. Ct ................................................................................................................................................ 27
Shaun Flaker, “R. v. Syncrude Canada: A Clash of Bitumen and Birds”, 2011..................................................................................... 27
[Directors’ and Officers’ Liability] ............................................................................................................................................................................ 28
R. v. Bata Industries Ltd., 1992, Ont. Prov. Div. .................................................................................................................................................. 28
[Sentencing in Enviro. Cases] ...................................................................................................................................................................................... 29
R. v. United Keno Hill Mines Ltd., 1980, Y.T. Terr. Ct. ..................................................................................................................................... 29
Elaine L. Hughes & Larry A. Reynolds, “Creative Sentencing and Enviro. Protection”, 2008 ...................................................... 29
The Emerging Role of Admin Monetary Penalties (AMPs), pp 398-400.............................................................................................. 30
Stepan Wood & Lynn Johannson, “Six Principles for Smart Reg.”, 2008 ................................................................................................ 30
Citizen Enforcement, pp 414-427 ........................................................................................................................................................................ 30
[Citizen Suits & Enviro. Bills of Rights]................................................................................................................................................................... 30
C. Tollefson, et al, “Towards a Costs Jurisprudence in Public Interest Litigation”, 2004 ................................................................ 30
[Private Prosecutions] ..................................................................................................................................................................................................... 31
K. Ferguson, “Challenging the Intervention & Stay of an Enviro. Private Prosecution”. 2004 ..................................................... 31
Kostuch v. Alberta (AG), 1995, Alta. CA (leave refused to SCC) .................................................................................................................. 31
JR of Environmental Decision-Making......................................................................................................... 32
Admin D/Making & Judicial Review in the Enviro. Law Context, pp 429-437 .................................................................................. 32
M. Haddock, “Enviro. Tribunals in BC”, 2011..................................................................................................................................................... 32
JR Background & Overview, pp 437-441 .......................................................................................................................................................... 32
Georgia Straight Alliance v. Canada (Minister of Fisheries & Oceans), 2012, FCA *Consolidated Orcas .............................. 33
Standard of Review: Dunsmuir & the Enviro. Caselaw, pp 441-454 ..................................................................................................... 33
New Brunswick (Board of Mgt) v. Dunsmuir (2008, SCC) ............................................................................................................................... 33
[Standard of Review in the Enviro. Law Context] ................................................................................................................................................ 34
Georgia Straight Alliance v. Canada (Minister of Fisheries & Oceans), 2012, FCA *Consolidated Orcas .............................. 34
Wier v. BC (Enviro Appeal Board), 2003, BCSC ................................................................................................................................................. 34
Cdn Parks & Wilderness Society v. Canada (Minister of Cdn Heritage), 2003, FCA *CPAWS ..................................................... 35
Dene Tha’ First Nation v. Canada (Minister of Enviro.), 2006, FC ............................................................................................................ 35
Grounds for JR, pp 455-468 .................................................................................................................................................................................... 35
[Reliance on Irrelevant Consideration/Fettering Discretion]......................................................................................................................... 35
Wimpey Western Ltd. v. Alberta (Dpt of the Enviro.], 1983 Alta CA ........................................................................................................... 35
Imperial Oil Ltd. v. BC (Ministry of Water, Land & Air Protection), 2002, BCSC ............................................................................... 36
[Discrimination in the Exercise of Reg-making Power] .................................................................................................................................... 36
Moresby Explorers Ltd. v. Canada (AG), 2007 FCA .......................................................................................................................................... 36
[Procedural Fairness]...................................................................................................................................................................................................... 37
Chameau Exploration Ltd. v. Nova Scotia (AG), 2007 NS SC ........................................................................................................................ 37
[Failure to Give Reasons] .............................................................................................................................................................................................. 37
Pembina Institute for Appropriate Dvpt v. Canada (AG), 2008 FC ............................................................................................................. 38
Public Interest Standing, incl. Finlay Test pp 468-478 ............................................................................................................................... 38
[Benefit of Public Participation] ................................................................................................................................................................................. 38
Raj Anand & Ian Scott, “Financing Public Participation in Enviro. D/making”, 1982...................................................................... 39
Shiell v. Canada (Atomic Energy Control Board), 1995 Fed TD .................................................................................................................. 39
Algonquin Wildlands League v. Ontario (Minister of Natural Resources), 1996, Ont Div Ct .......................................................... 39
MiningWatch Canada v. Canada (Minister of Fisheries & Oceans), 2007, FC...................................................................................... 39
Interim Injunctive Relief incl. RJR MacDonald Test, pp 478-487 ........................................................................................................... 40
C. Tollefson, “Advancing an Agenda: Reflections on Recent Developments in Public Interest Enviro. Litigation” 2002 ... 40
[Injunction Caselaw in the Enviro. Context] .......................................................................................................................................................... 41
Algonquin Wildlands League v. Ontario (Minister of Natural Resources), 1996, Ont Div Ct .......................................................... 41
Imperial Oil Resources Ventures Ltd. v. Canada (Minister of Fisheries & Oceans), 2008, FC ...................................................... 41
Costs in JR Proceedings, pp 487-496 .................................................................................................................................................................. 42
C. Tollefson, “Costs in Public Interest Litigation: Recent Dvpts & Future Directions”, 2009........................................................ 42
C. Tollefson, “Costs in Public Interest Litigation Revisited”, 2011 ............................................................................................................. 42
Environmental Assessment ........................................................................................................................... 43
CEAA 1995, pp 497-508 ........................................................................................................................................................................................... 43
CEAA 2012, pp 508-523 ........................................................................................................................................................................................... 45
Challenges ahead for EA, pp 569-586 ................................................................................................................................................................ 48
Scoping Challenge [570] ................................................................................................................................................................................................ 48
The Role of the Public, p 571 ........................................................................................................................................................................................ 48
Engagement with First Nations, pp. 573-575 ......................................................................................................................................................... 48
Strategic Environmental Assessments (SEAs), pp 576-577 .............................................................................................................................. 49
Sustainability Assessments, pp 579-585.................................................................................................................................................................... 50
Gibson, “Favoring the Higher Test: Contribution to Sustainability as the Central Criterion for Reviews and Decisions
under CEAA” (2000) ........................................................................................................................................................................................................ 50
Fonseca and Gibson, “Kemess North fails the test” 2008 ............................................................................................................................... 50
Species at Risk .............................................................................................................................................. 51
Overview, pp 649-655 .............................................................................................................................................................................................. 51
P. Wood & L. Flahr, “Taking Endangered Species Seriously? British Columbia’s Species-at-Risk Policies” (2004, Can.
Pub. Pol’y) ............................................................................................................................................................................................................................ 51
Kate Smallwood, “A Guide to Canada’s Species at Risk Act” (Sierra Legal Defence Fund, 2003) .............................................. 51
J. Kunich, “Preserving the Womb of the Unknown Species with Hotspots Legislation” (2001, Hastings L.J.) ........................ 51
Species Listing, pp 656-663.................................................................................................................................................................................... 52
Kate Smallwood, A Guide to Canada’s Species at Risk Act (Sierra Legal Defence Fund, 2003) .................................................... 52
A.O. Mooers et al., “Science, Policy, and Species a Risk in Canada” (2010, BioScience) ................................................................ 52
Critical Habitat Designation, Recovery Strategies & Actions Plans, pp 663 – 667 .......................................................................... 53
A.O. Mooers et al., “Science, Policy, and Species a Risk in Canada” (2010, BioScience) – further extract ............................. 53
Recovery Strategy Litigation, pp. 667-682....................................................................................................................................................... 54
Alberta Wilderness Assn. v. Canada (Minister of Environment), 2009, FC (“Sage Grouse case”) ............................................... 54
Environmental Defence Canada v. Canada (Minister of Fisheries & Oceans), 2009 FC (“Nooksack Dace case”) .............. 54
Critical Habitat Designation, Recovery Strategies & Actions Plans, pp 682 – 708 .......................................................................... 55
Georgia Straight Alliance v. Canada (Minister of Fisheries & Oceans), 2010 FCA “Consolidated Orcas” ............................ 55
Adam v. Canada (Minister of the Environment), 2011, FC .............................................................................................................................. 56
Prohibition on Harm to species, pp 709-713 .................................................................................................................................................. 57
Kate Smallwood, A Guide to Canada’s Species at Risk Act (Sierra Legal Defence Fund, 2003) .................................................... 57
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, US 1995 ..................................................................................... 58
Species Protection as Governance Issue, pp 716-731 ................................................................................................................................. 58
Species Protection Initiatives at Provincial Level ................................................................................................................................................ 58
Ecojustice, Failure to Protect: Grading Canada’s Species at Risk Laws, 2012 ..................................................................................... 59
SARA and Provincial Land Resource Development Decision-making ........................................................................................................ 59
0707814 BC Ltd. v. BC (Assistant Regional Water Manager), (2008, BC EAB) .................................................................................... 59
The Ontario Endangered Species Act, 2007 ........................................................................................................................................................... 60
Emerging Perspectives on Species and Biodiversity Protection, pp 731-738 .................................................................................. 60
Holly Doremus, “Biodiversity and the Challenge of Saving the Ordinary”, 2002 ................................................................................ 60
Isabelle Deguise & Jeremy Kerr, “Protected Areas and Prospects for Endangered Species Conservation in Canada”
(2006) ...................................................................................................................................................................................................................................... 60
Climate Change ............................................................................................................................................ 61
Climate Change and Tort Law, pp 747-761 ..................................................................................................................................................... 61
D. Curran, “Climate Change Backgrounder”, UVic ELC, 2007 .................................................................................................................. 61
Climate Change Tort Litigation in the US: A Snapshot ..................................................................................................................................... 62
Nature Village of Kivalina v. ExxonMobil Corp, 2009 ...................................................................................................................................... 62
R. Trent Taylor, “The Death of Enviro. Common Law?: The Ninth Circuit’s Decision in Native Village of Kivalina v.
ExxonMobil Corp.”, 2012 .............................................................................................................................................................................................. 63
Climate Change & the Division of Powers, pp 761-776 .............................................................................................................................. 63
Shi-Ling Hsu & Robin Elliot, “Regulating Greenhouse Gases in Cda: Constitutional & Policy Dimensions”, 2008 ........... 63
Alexis Belanger, “Cdn Federalism in the Context of Combating Climate Change”, 2011 ................................................................ 64
Governance & Regulatory Approaches to Climate Change, pp 776-790.............................................................................................. 65
Shi-Ling Hsu & Robin Elliot, “Regulating Greenhouse Gases in Cda: Constitutional and Policy Dimensions”, 2008 ....... 65
Reuven S. Avi-Yonah & David. M. Uhlmann, “Combating Global Climate Change: Why a Carbon Tax is a Better
Response to Global Warming than Cap & Trade”, 2009 ................................................................................................................................. 65
JR of Climate Change Policy, pp 790-808 .......................................................................................................................................................... 66
Friends of the Earth v. Canada (Gov. in Council), 2008, FC (leave refused SCC) ............................................................................... 66
Massachusetts et al, Petitioners v. Enviro. Protection Agency et al., US 2007 ....................................................................................... 67
Climate Change and EA, pp 808-818 .................................................................................................................................................................. 67
A. Koehl, “EA and Climate Change Mitigation”, 2010 ..................................................................................................................................... 67
Climate Change & Biodiversity, pp 818-828 ................................................................................................................................................... 69
J. Kostyack & D. Rohlf, “Conserving Endangered Species in an Era of Global Warming”, 2008 ................................................ 69
J.B. Rulh, “Climate Change and the ESA: Building Bridges to the No-Analog Future”, 2008 ....................................................... 69
Perspectives on the Future of Climate Change Law & Policy, pp 828-839 ......................................................................................... 70
J. Purdy, “The Politics of Nature: Climate Change, Enviro. Law & Democracy”, 2010................................................................... 70
P. Havermann, “Ignoring the Mercury in the Climate Change Barometer: Denying Indigenous Peoples’ Rights”, 2009 . 70
1
Common Law
3 branches: Property, Contract, Tort
History: starting in 1970’s, CL perceived as inadequate, enviro leg. enacted
Applying Traditional Tort Law in Enviro Cases, pp 68-110
Cause of action
Trespass to land
Private nuisance
(amenity vs.
physical damage to
land)
Definition
Direct, intentional, unjustifiable
physical interference w another’s
possession of land
Note: actionable w/out proof of
damage; w/out knowledge of
ownership
Rare: trespass to person for enviro
harm causing pers. injury
Unreasonable and substantial
interference with another’s use or
enjoyment of land, causing
foreseeable harm to Pl
Note: actual damage required
*most common tort
in enviro cases
Public nuisance
Rule in Rylands
v Fletcher
Negligence
Leading case
Palmer
Smith v Inco
Palmer
Cambridge
Water
Smith v Inco
Interference w public as opposed to
private rights; or a significant
portion of the public; widespread
in range and indiscriminate in
effect;
Note: actual damage required
Non-natural use of land by
landowner who brings on their
property a dangerous substance
capable of escape; escape occurs,
causes injury to another [Smith v.
Inco]
Note: strict liability
See discussion in
Smith v Inco
Pl must show she was owed duty
of care, D breached req’d standard
of care, Pl suffered damage,
damage was caused
(factually/legally) by D
[Mustapha]
Breach of neighbour principle
[Donoghue v. Stevenson]
-Just v BC
(1989, SCC) :
see note 8 at
p. 66 DT
Palmer
Cambridge
Water
Smith v Inco
Key doctrinal issues & defences
Directness requirement (spraying,
vibrations, smells?)
What constitutes “physical” interference
(proof that substances migrated, etc.)
Discretionary nature of judicial
balancing test (physical damage,
gravity/ duration interference, nature of
neighborhood, utility of D’s activities,
sensitivity of Pl)
Smith v. Inco: test varies according to
whether claim for “material physical
damage” or interference w reasonable
use
Requires sufficient property interest
AG is presumptive Pl
Private citizens don’t have standing
(except w AG consent)
“Special damage” required (distinct fr
that suffered by general public)
In UK law, includes
reqt that damage be reasonably
foreseeable (Cambridge Water); not so
in Canada (Smith v Inco)
Doesn’t need to be single, isolated
escape (Smith v Inco obiter)
Harm must be unintended consequence,
not intended (Smith v. Inco obiter)
Non-natural use requirement
Issues of causation & remoteness
Uncertainty concerning scope of duty
(esp. re. govt Ds due to
policy/operational distinction)
Further problems:
Remedy: monetary compensation (make Pl “whole”, restore her to position before tortious act)
 enviro harm that cannot be assigned mkt value goes uncompensated
Alt Remedy: injunctive relief (interim or permanent) (Palmer: discretionary & unpredictable)
2
Contaminated sites: most provs have laws requiring current owners to remediate sites w historical contamination
 only to point that eliminates ongoing risks to human health & enviro (rather than pre-contaminated condition)
 when bankrupt, not clear where remediation obligation ranks w other creditors
Palmer v. Nova Scotia Forest Industries, 1983, NS TD
Issue
Legal reqts of nuisance, trespass and
strict liability
Sought permanent quia timet/before
the fact injunction (elements:
irreparable harm, damages not
adequate remedy, D’s actions will
cause harm – burden of proof on Pl)
Ratio
Notes
Claims: private nuisance, trespass to land,
Traditional Tort law
rule in Rylands, right of riparian owners,
Ability of CL to act preventative
right of landowners to groundwater free of
& precautionary manner
contaminants, breach of Fisheries Act  all Leg. supremacy
claims fail
Costs played large part
Ct: Cda has reg. agency, this isn’t Ct’s
place/ criticized credibility of Pl experts
*compare w Sage Grouse case, where
Zinn, J. said “yes, cts aren’t academies of
science, but we can look at evidence in
record”  D gets its costs
Facts: Forest Co. spraying herbicides pursuant to a license to spray issued by NS Dept of Enviro
JH: awarded injunction at TC, lifted by CA (interim injunction until new trial, sent back for new trial)
Cambridge Water Co v. Eastern Counties Leather Plc, 1993, UK HL
Issue
Foreseeability req’d for
nuisance & rule in Rylands? 
nuisance yes, Rylands yes
(eliminates SL)
Ratio
Notes
Negligence  not foreseeable by reas. employee
Leg. supremacy
at time of escape
Current philosophy imposes no
Private nuisance  not foreseeable
liability for historic pollution
Rule in Rylands  not foreseeable
 if there’s to be SL for “ultra-hazardous”
operations, leave that to Leg.
Overturned TC: storage lrg amount chems “almost
classic case of non-natural of land”
Facts: PCE seeped into aquifer groundwater at site of D ops (regular small spills up to 1976), contaminated borehole, Pl
bought borehole, then EU changed regs, so less sellable (no less potable!) ~loss of business opportunity
JH: Trial ct dismissed case (found PCE spills not foreseeable at the time to cause enviro damage - thought evaporated in
air), CA found D strictly liable, appealed to HL
Smith v Inco, 2011, ON CA (leave to appeal refused)
Issue
Does public concern
generated from D’s actions
qualify as actual,
substantial, physical harm
under nuisance?
Does rule in Rylands
extend to “ultra
hazardous” activities; did
D’s actions constitute a
non-natural use of land?
Ratio
Notes
Private nuisance: balance interests of 2 parties; D’s
Would be conceptual anomaly: no
conduct may be reasonable, but interference must be
nuis. during emit, but 15 yrs later?
unreas. (amenity = balance factors; phys. damage =
Leg. supremacy (quotes
conduct always unreas.) chem. change not enough Cambridge)
for injury, must have detrimental effect on land/rights Health effects alleged too diverse,
associated w land; nuis. based on public concern =
class not certified
inchoate crime hanging over prop. in case concern
TC challenges: pro bono, power
materializes
imbalance, $ for health experts, ltn
Rule in Rylands: non-natural use doesn’t mean bring periods (so focused on discovery
substances didn’t arise naturally, must weigh factors
date – wouldn’t know prop.
(place, time, manner of use); SL for “ultra-hazardous devalued until 2000), proving
activities” is for Leg, need “abnormal risk of harm” damages
 this wasn’t
Facts: D’s nickel refinery released nickel onto soil of Port Colborne residents’ properties from 1918 – 1984 (most before
1960), resulting in public perception that led to alleged lack of appreciation (as compared to similar municipalities)
JH: TC found D liable in private nuisance and under strict liability of Rylands, appealed (found not liable in public
nuisance, trespass – not appealed)
Major diff. in class action leg. in BC / ON: in ON, even after certified, rep Pl potentially liable for costs
3
Understanding the Limits of Traditional Torts in the Enviro Context, pp 110-121
Lynda Collins, “Material Contribution to Risk and Causation in Toxic Torts” (2001)
Causation one of big hurdles in enviro cases: all individual Pl can do is prove D materially increased risk of dvp’ing type of
injury sustained
Traditional causation principles may deny Pl recovery even when D fell below societally-acceptable standards (not
designed to deal w toxic torts)
“But for” causation test [traditional]: Pl must show “but for D’s conduct, on BoP, she wouldn’t have sustained loss”
1) Legal/proximate cause (“remoteness”)
2) Factual causation: quasi-scientific inquiry into mechanistic rship b/w Pl’s injury and D’s conduct
Problem  all-or-nothing outcome usually results in nothing, due to: long latency periods, multiple potential causes,
microscopic changes (no eye witnesses, just circumstantial evidence)
Material contribution test [can supplement w this when multiple causes]; “D materially contributed to loss”
If proven, recover 100% of loss; if not, nothing
Future/probable losses discounted to % probability they will occur
Generic vs. Specific Causation:
Generic causation: D’s conduct was capable of causing injury of type sustained by Pl
Specific causation: D’s conduct actually caused Pl’s injury (necessarily proved Generic – collapsed in tort cases)
Problems w Generic Causation:
1. Evidence needed to est. generic causation often doesn’t exist
2. Academic controversy re. admissibility/sufficiency of epidemiology/probabilistic evidence (US/Cdn cts
suspicious, but haven’t ruled out)
3. Disparities b/w legal probability (51%) & scientific (~95%)  judges sometimes implicitly adopt scientific
standard
Problems w Specific Causation:
1. Indeterminate D: Pl injured as result of 1+ Ds, not able to identify which
i.e. Sindell v. Abbott Labs [Pl’s mother ingested DES during pregcy]: used mkt share liability to permit recovery
2. Indeterminate Pl: class of ppl’s risk of illness materially inc. as result of D’s conduct (i.e. 1 per 100 to 3 per 100)
 should D be liable, if so, should it be full compensation or 2/3rd?
3. Indeterminate harm/future claimant: no injury yet, but in class w inc. risk
 if recover, should it be for medical monitoring (at least), mental distress associated w fearing injury, or
intangible loss of value to Pl caused by exposure to risk?
Snell v. Farrell, 1990, SCC (flexible application of traditional approach)
Issue
What causation
test should be
used?
Ratio
Notes
Adoption of burden shifting unjust (only when Cook v. Lewis/ multiple
Flexible approach to
tortfeasors scenario), should keep existing burden and standard of proof but
traditional causation in
use more flexibly (“too-rigid application by the cts in many cases”)
neg.
(“causation… can be answered by ordinary common sense rather than
abstract metaphysical theory”)
Facts: eye injury after cataract op; TC found dr. neg. by continuing surgery after bleeding, but 1 of many possible causes
JH: TC: followed HL’s McGhee [showers in brick factory] and shifted burden of disproving allegations to D after Pl
makes case for causation; CA: upheld (even though McGhee redefined in UK in meantime)
Toxic tort litigation in Cda: significant ongoing barriers (extreme costs due mostly to need for scientific evidence/experts,
uncertainty caused by Snell may discourage many Pls fr going fwd)
Hollis v. Dow Corning Corp, 1995, SCC
Issue
What causation
test should be
used?
Ratio
Ct relaxed “but for” standard by relieving Pl fr
proving Dr. would have warned of pertinent
risks had mnftr provided Dr. w necessary info
Notes
“Pl in position of great informational inequality”,
facts lie w/in knowledge of D (could extend to toxic
torts) ~creation of new tort of neg. creation of risk?
4
Facts: breast implants, wasn’t warned by Dr.
Alt Approaches to Causation (all use liability on basis of risk creation rather than injury):
1. Material contribution/substantial factor test (discussed above)
*2. Altering burden of proof:
i.e. HL’s McGhee case (though not followed in Snell, still good model)
3. Concerted action theory
4. Market share liability (see below)
*5. Redefinition of “injury” (creation of new tort of wrongful risk creation: where D, w/out consent of Pl, exposes Pl
to some risk of harm; don’t need to wait for illness to dvp, can secure recovery before)
Approaches (least to most extreme)
Case example (Pl’s mother Notes
Approach
took DES during pregcy)
Martin v. Abbot Labs
Judge limited ea. D’s liability to its mkt share; also used to sue
Mkt Share liability
(USA)
tobacco mnfts & coal co’s (re. climate change)
Collins v. Eli Lilly Co.
Pl sued any one of negligent mnfts of DES and recover 100%; Ct
De facto joint liability
(radical version of risk
(USA)
based liability on fact that “ea. D contributed to risk of injury to
contribution theory)
public & consequently to the ind. Pls”
Creation of Neg.
Hymowitz v. Eli Lilly Co.
D mnft liable even though proved didn’t produce drug that caused
creation of Risk tort
(USA)
injury; didn’t use proof of risk as proxy for proof of injury, but
(**see below)
elevated neg. creation of risk to tort in and of itself
** Options for payment through Neg. creation of risk tort:
i. Full compensation
ii. % paid = % likelihood D caused injury (Proportional liability)
~ Essentially Mkt Share liability w indeterminate D (D inc. Pl’s chance fr 1/100  3/100, owes 2/3rd of cost
of harm)
Note: issue w under- and over-compensation of specific Pls; proceeding as class action would better
accomplish deterrence
Also allows recovery in indeterminate harm situation (based on % inc. in dvp’g harm)
Summary: issues w causation deter Pls fr taking on expense of commencing action, Snell v Farrell is step in right direction,
but need reverse onus in material contribution to risk situations & new tort of neg. risk creation
Class Action Suits and Enviro Tort Claims, pp 122-129
Pros & Cons of Class actions:
 Certification can cost $1 mil+, but afterwards, Pls either immune fr adverse damage awards or come fr public fund
 Class actions encourage out-of-court settlements
 Commentators originally optimistic re. class actions in Cda, but now Cts focus on individual aspects of prob,
overlook collective harm
 Problem: individual claims expensive to litigate, so denies access to justice
Christie Kneteman, “Revitalizing Enviro Class Actions: Quebecois Lessons for English Canada” (2010)
Benefits to class actions:
1. Access to justice (*QB focuses on during certification):
Esp. imp as enviro torts often affect marginalized communities
Class actions create economies of scale for legal fees, attract counsel on contingency basis
Note: except for in QB, enviro class actions have done nothing to improve access to justice
2. Behaviour modification:
Directly through threat of lrg damage awards
Indirectly through encouraging enviro policy/law change (exposes results of lax enviro laws)
3. Judicial economy (*English Cda focuses on during certification):
Reduces total amount litigation arising fr single dispute
Issue: assuming individual Pls won’t proceed w claims outside of class action, judicial economy actually served
by not certifying
5
English Canada vs. Quebec:
 QB insulates Pl rep fr liability post-certification
 QB Civil Code more conducive to class actions than Eng CL
 QB more likely to certify class, but also willing to find for D’s on merits of case
 QB more likely to certify enviro class actions that involve personal injuries
 QB Pls have right to appeal decision to not certify, whereas D’s not able to appeal at all
 Procedure: during certification, QB favours focusing on access to justice, Eng Cda favours predominance test which
involves judicial economy concerns
 Causation: general causation common to all class members, specific causation is individual issue (can’t be resolved
in class actions)  QB more likely than Eng to view est’g general causation as significantly advancing a case
 Judicial creativity in QB: judges facilitate certification (and decreasing individual differences) by est’g subgroups
 concerns in Hollick could have been dealt w through subgroups? (see below)
Precedent cases
Case
Alcan (QB)
Hollick v. Toronto
(City) (SCC)
Barrette c. Ciment du
St-Laurent inc. (SCC)
Note: Chamberlain v.
BC (BCCA)
Facts/Ratio
Air pollution
Keele landfill near TO, 30k
residents denied certificat’n
noise, odour, pollution fr
cement factory
TC, group of FN collectives
got cert’n based on
geography; CA reversed
Notes
Liberal approach to class actions in QB
Conservative precedent in Eng Cda (focused on individual nature,
“overwhelming common issues”); tech’y SCC left it open, but few
cases come fwd since
SCC’s first and only judgment on merits of enviro. class action;
accepted no-fault liability (distinguished fr Hollick)
~BC’s Smith v Inco?
Public Rights, pp 138-162
Examples: public nuisance; also, though inchoate in Cdn law, “public trust doctrine” (stand in shoes of AG, represent
citizens, make claim that action is against public interest)
Tollefson: Optimistic area…
Justice B.J. Preston, “The Role of the Judiciary in Promoting Sustainable Development: The Experience of
Asia and the Pacific” (2008)
Public trust doctrine:
 Idea that certain common resources (air, waterways, forests) held in trust by State for benefit/use of general public
o Broader: held by current generation for future generations
o Accompanying fiduciary duty
 Origins in Roman law
o Modern examples: Chicago Railway case (USA, 1892): sued in K, would have failed but uphold under
public trust, also Scottish and Australian law
 Cannot alienate property unless public benefit would outweigh loss of public use/”social wealth” derived fr area
 Joseph Sax, Michigan Law Review: 3 types restrictions imposed on govt authority by public trust:
o 1) Property used for public purpose and held available for use by general public
o 2) Property must not be sold
o 3) Property must be maintained for particular types of uses such as navigation, recreation or fishery
British Columbia v. Canadian Forest Products Ltd. (2005) SCC
Issue
1. AG’s ability to recover damages for
enviro. loss? (as prop. owner & rep
ppl of BC/parens patriae); Crown’s
hybrid role as reg’r of forestry
industry & recipient of revenue stream
Ratio
Affirms AG, rep’g Crown, is appropriate party to
sue for abatement of public nuisance; injunctive
relief isn’t only optn (damages possible) “Burning
down forest is capable of constituting public
nuisance, also neg.”
Notes
- Only articulation of
public trust doctrine in
recent yrs & ever at SCC
- Forests not usually part
of PT, usually things
6
est’d and ltd by its own reg. system
2. Reqt for proof of that loss?
3. Approach to assess’t of enviro.
compens’n at CL
Impractical for ind’s to show “special damage” w public needs to access
re. to most enviro. harm, so AG bring claim for
(harbours)
them, should be entitled to damages
- Ntl Parks Act says
Affirms notion of “inalienable” public rights in
“future gens”, interp’d by
enviro. reside in Crown, has deep roots in CL &
Ct as trust rship
procedural right of AG to sue on behalf of public as
parens patriae to protect rights (shouldn’t be
judicially def’d narrowly)
Public trust doctrine aff’d, just not right case
(Crown framed case commercially in pleadings,
then public trust at SCC/sued as trustee; are other
parts of enviro besides timber but weren’t
mentioned (this really about enviro?)
 no compensation remains for harvestable trees,
D’s appeal allowed w/ re. to non-harvestable trees
(no compensation), as Crown didn’t plead public
interest fr start
Facts: Canfor’s controlled burn of logging waste didn’t extinguish over winter and caused forest fire
JH: Crown claiming compensation for: (1) expenditures for suppression of fire – award at TC; (2) loss of stumpage
revenue (had right to harvest/“harvestable trees”) – n/a at TC  Crown appealed, still n/a; (3) loss of trees (didn’t have
right to harvest/“non-harvestable/protected trees”) – n/a at TC  Crown appealed, and awarded 1/3 mkt value at CA  D
appealed this award to SCC, Crown cross-appealed as thought too little
Important policy q’s:
 Crown’s potential liability for inactivity in the face of threats to enviro.
 Existence of fiduciary duty owed to public?
 Limits to role/function/remedies available to gvts taking action on harm to public resources
 Imposition of indeterminate liability for indeterminate amount of $ on private interests for enviro. damage
Jerry V. DeMaco, Marcia Valiante & Marie-Ann Bowden, “Opening the Door for CL Enviro. Protection in
Cda: The Decision in BC v. Canadian Forest Products Ltd.” (2005)
Case charts pos. future for enviro. law in Cda; Ct actively engaged in promo of enviro. protection as “a fundamental value in
Cdn society” (esp. w LaForest, J. at SCC, expanded role for municipalities, polluter pays, precautionary principle)
Re. Public nuisance
 When commencing action, BC based its claim in neg., then at SCC recast its arg in support of recovery for eco. harm
o Accepting this arg would be to entitle BC to recover damages which a private landowner wouldn’t be
entitled (conceptually meaning wasn’t just Crown’s loss but public’s as well)
 Binnie, J. says no legal barrier to AG suing for compensation/injunction for public nuis/neg. causing enviro. damage,
this just wasn’t proper case (“invitation for test cases in these areas”)
o Public nuis. concl. based on the following:
1. Crown’s parens patriae jurisdiction
2. Broad view of what public nuisance is
3. In public nuis,, injunction isn’t only remedy avail., damages possible (*key take-away)
Re. Public Trust
 Well-dvp’d in US, not in Canada (argued from time to time)
 Crown or public interest litigants to come fwd in appropriate case and argue public trust
 Binnie resolved issue of damages vs. only injunction, so public standing one of only remaining hurdles to dev’t of
more enviro. beneficial CL jurisprudence in Cda
Burns Bog Conservation Society v. Canada (Attorney General) (2012) FC
Issue
Duty of trust
generally; public
trust doctrine
specifically
Ratio
Property ownership (vested interest) req’d for trust
rship (in addition to 3 certainties of trust: (1)
language must say settlor wants trust; (2) subject
matter of trust; (3) object/ beneficiary of trust); Pl
Notes
To-date no Cdn cts have recognized public
trust doctrine req’g Crown to take pos. steps
to protect enviro. generally or specific prop.
Distinguishes Canfor (left public trust open)
7
relies heavily on assertion but brings little evidence/ as Crown owned land there, didn’t here
authority (incl. dangers to bog, how D fixed w legal
duties/ obligations asserted)
 no genuine issues for trial (no evidence to backup claims), case dismissed summarily
Facts: Fed govt and bog owners entered into Mgt Agreement re. long-term mgt of bog; South Fraser Perimeter Rd
proposal will run adjacent to bog (passed Fed EA w conditions)
JH: Pl filed statement of claim asserting Fed govt owes public a trust, fiduciary or other legal duty to protect bog; D filed
motion for summary judgment on ground that no legal basis for Pl’s claim
Andrew Gage, “Asserting the Public’s Enviro. Rights” (2008)
Cdn enviro laws mostly unchanged fr 30 yrs ago, despite SCC writing re. fundamental imp. enviro. protection
 However, old idea of public rights (rights vested in public generally, any member may enjoy)
 Case law + stat. authority for [consumptive] rights to:
o Use air
o Fish and continued existence of fish habitat
o Use water for navigation (and likely for domestic purposes)
o Use parkland and other lands for public purpose
o Hunt wildlife in accordance w law
 Mixed blessing fr enviro perspective as consumptive
 More general right to safe enviro / conservation? Likely, b/c (1) Canfor suggests, as no evidence land was for
public use; (2) moves law away fr focus on individual; (3) aligns w case law re. Ab rights (as also collectively held,
emphasize “continuity of rship”) (also Canadian Pacific, Hydro Quebec, Imperial Oil)
Public nuisance:
 Issue w standing: usually only AG, or individual w “special harm” (case law kept this narrow, i.e. Hickey where
fishermen couldn’t sue for oil spill b/c their loss of income was just greater amount of same harm as rest of public)
 public nuisance used v. little in enviro context
o However, Hickey is TC decision; other cases show direct financial loss as result of interference w public
right does qualify as “special harm”
o “Public interest standing” dvp’d in Admin and Const cases since Hickey
Stat interpretation of enviro. laws:
 Accepted principle that leg should be interpreted as not infringing existing legal rights (w/out clear intention to
interfere)  incl. public rights?
Constitutional Law
Overview and the Division of Powers & the Environment, pp 165-172
Adapted fr Constitutional Chapter in M. Doelle, “The Federal EA Process: A Guide & Critique”, 2008
History:
 SCC began confronting tension b/w DOP & enviro. protection in 1980’s w fisheries + marine pollution issues
(Zellerbach, Oldman River, Hydro-Quebec)
 Fed/Prov. conflicts (i.e. AB + Feds since energy crisis in 1970’s)
 Recently: implementing the Kyoto Protocol
Prov. heads of power (limited by territory):
 Provs wield significant proprietary rights as putative landowners
o Subject to s. 35 Ab rights (significant in BC)
 Provs broad leg. authority re. enviro. via: s. 92(13) prop + civil rights, 92(16) matters local/private nature, 109 mines
& minerals, 92A non-renewable resources, 92(8) municipal institutions, 92(10) local works & undertakings (except
those under Fed control)
 however, Provs subject to limitations by exclusive or concurrent Fed jurisdiction
 Prov jur’n ltd to boundaries of prov (uncertain in coastal areas), can only have incidental effects outside
8
territory
Federal heads of power (ltd by ownership):
 Fed Crown ltd (see below), so relies on heads of power
 “patchwork of fed powers superimposed on carpet of prov powers”
 Conceptual powers (refer to specific responses allowed):
o Criminal law  Hydro-Quebec upholds as means to achieve enviro. protection & allows embedding of reg.
scheme
o Spending power (to support specific policies, i.e. incentives to reduce enviro. impact, reward enviro.
innovation)
o Taxation power  central to enviro law, i.e. carbon tax; Tollefson: lots of op for change
o Trade & Commerce power (interpreted narrowly, Parsons v. Citizens’ Insurance limits to T&C crossing
prov. or intl. border)  intl. emissions trading system?
o POGG:
a. Gap test (matter wasn’t in mind of drafters of Constitution)  dismissed as means to achieve enviro.
protection
b. National Dimensions  Zellerbach upholds as means to achieve enviro. protection & lays out test
c. Emergency  proposed as basis to deal w endangered species and climate change  verdict’s out
 Functional powers (refer to specific issues allowed to control):
o Sea coast and inland fisheries, s. 91(12); note: fish processing still prov.  aquaculture currently under
dispute
o Navigation and Shipping, s. 91(10)
 Navigation: broad interp., all navigable waters (regardless of whether in prov. or private hands)
 Shipping: narrow interp., interprov. & intl. shipping
o Interprovincial works and undertaking, s. 92(10)(a); interprov. communication & transportation of interprov.
nature, works for advantage of 2+ provs
o Note: Zellerbach accepts marine pollution as new functional head of power for Feds
 Concurrent/exclusive legislative powers:
o If exclusive, only that level can legislate
 Even if it doesn’t, the other cannot (resulting in gap in law)  however, admin arrangements
delegating ability to leg. have been upheld)
o If concurrent & both legislate, Fed. leg prevails in extent of inconsistencies – paramountcy
o Interjurisdictional immunity: constitutional limits on prov. binding fed govt to their enviro. laws, BUT
reverse is dependent on leg. construction & as long as clear in their application to prov govts, fed laws
upheld ( ~only goes 1 way)
Federalism & the Enviro. in the SCC, pp 173-212
Note on 1980s forestry cases impacting marine enviros:
 Fowler (SCC held no-dumping outright prohibition ultra vires Fed. govt as no link to harm to fish)
 Northwest Falling (held HADD provision in Fisheries Act intra vires Fed govt. as clear nexus b/w action &
harm)  both cases decided on functional powers;\
 Zellerbach decided on conceptual powers
LaForest trajectory:
Zellerbach (1988: LaForest dissents on allowing marine pollution to be Ntl Dimension of POGG)
 Oldman River (1992: LaForest maj. says enviro. protection can’t be goal of POGG)
 Hydro-Quebec (1997: LaForest asserts broad crim. law power, seems to be in contradiction to his dissent in
Zellerbach)
R. v. Crown Zellerbach Canada Ltd., 1988, SCC
Issue
Is Fed OCDA ultra
vires Fed govt as it
relates to
regulating dumping
in Prov water?
Majority, Le Dain, J:
Cda arg: laws attempting to inhibit
marine pollution should be upheld
under Ntl Concern arm of POGG
Dissent, LaForest, J:
Re. Crim law: re. public purpose reqt: can’t be held to
protect health, as prevents any substance fr being
dumped, even innocuous
Ntl Dimensions test [Anti-Inflation
Re. POGG: just regulating local works & undertakings,
9
(Crim. Law or
POGG)
Notes
SCC accepts
marine pollution
as new head of Fed
power under Ntl
Dimensions of
POGG (even if
marine water w/in
Prov. boundary)
Maj: “Marine
pollution…
clearly a matter
of concern to Cda
as a whole”
Act Ref]
1. “Singleness, distinctiveness,
indivisibility” (clearly distinguish’g fr
matters of Prov. concern) 
distinction b/w salt and fresh water
(“ascertainable and reasonable limits
insofar as impact on Prov. jurisdiction
concerned”)
2. Scale of impact on Prov. jurisdiction
that’s reconcilable w distribution of
heads of power
3. Prov. inability test (as per Labatt):
what effect on extra-prov. interests of
prov. failure to deal effectively w
control of inter-prov. aspects of matter
 ODCA passes Ntl Dimensions’
onerous test
no evidence that substance being dumped is deleterious
or will impact beyond limits of Prov.; “effective
pollution control reqs reg’g pollution at its source”
(would req. reg’ting air); OCDA doesn’t pass reqt #1 of
test  marine waters aren’t bounded by coast; line b/w
salt & fresh water cannot be demarcated clearly; ocean
pollution not confined to that coming fr substances
deposited in water
 “simply amounts to truncated fed. pollution control
power only partially effective to meet its supposed
necessary purpose, unless… willing to extend it to
pollution emanating fr air…[and] such an extension
could completely swallow up prov. power” [p. 180]
Concerns w extending Fed. exclusive jurisdiction too
broadly; anomalous results: (1) Van would have to ask
Feds to do everything as coastal, (2) Fed law against
depositing anything into air would be const. valid
Decision: Law upheld as marine
Decision: “provision simply overreaches”;
pollution det’d to be new head of
cannot be read down to apply to Fed. waters only;
power under Ntl Dimension branch
struck down as ultra vires Fed. govt
under POGG  refer back to Prov. Ct
Facts: Zellerbach forestry op dumping waste wood into water leased fr Prov Crown (“w/in jaws of land”); no evidence
of impact on fish/habitat; Z charged under Oceans Dumping Control Act; CZ challenges constitutionality of law
Underlying LaForest’s dissent: all levels of govt (incl. Municipal, Prov, Fed, First Nations) should concurrently legislate w
re. to enviro protection goals (informal concurrency)
Post-Zellerbach: laid groundwork for Feds to enact CEPA (ocean dumping is a chapter)
Friends of the Oldman River Society v. Canada (Minister of Transport), 1992, SCC
Issue
Constitutionality
of Guidelines
Order that allows
Fed. govt to
trigger Fed EA
AB govt: GO is
ultra vires Fed.
govt
Cda: EA reqt was
just policy, not
law, so didn’t
need to do it)
Judgment by LaForest, J:
“Protection of the enviro. has become one of the major
challenges of our time”
Pith & substance matter is w/in Fed power (may be
incidental effects to Prov. but this is fine)
Repeats dissent in Zellerbach: enviro. doesn’t have
“distinctiveness” to meet POGG Ntl Concern branch test
“Enviro. comprised of all that is around us & as such must
be a part of what actuates many decisions of any moment”
(diffuse nature)
“Both levels of govt may affect enviro. either by acting or
not acting”  Double aspect: one may leg. in regard to
Prov. aspect, the other fed (and GO only mandates Feds to
examine matters directly related to areas of their
jurisdiction; it’s a planning tool/integral to sound
d/making, allows them to admin their duties/functions)
Notes
One of first cases where NGO moved
case up to SCC; ex. of modern day
enviro law case
Fed jurisdiction over EAs that are
conducted to help fed d/makers decide
whether to authorize proposals
[Double aspect] Ct should
respect/promote ability of both levels of
gvt to tackle enviro. issues 
legitimizes voices for citizen’s groups in
resource dvpt projects
Decision: GO intra vires Fed. govt (both by sui generis
const. power: simultaneously supported by all Fed heads
of power implicated in specific proj. & “residuary power”
of POGG – not one of traditional categories)
Facts: AB govt proposes dam on Oldman River; reqs authorizations by Fed. Mins. of Transport and Fisheries; Fed. EART
Guidelines Order (GO) allows Fed Mins to screen proposals to det. if potential adverse enviro. effects & if so, can
conduct EA; Prov. EA done, but no Fed. EA; AB govt gets permit fr Min. Transport
JH: Application for certiorari & mandamus against Fed. Min. of Transport & Min of Fisheries to compel to complete EA
(under GO) before issuing authorizations
Note: later, GO implemented into CEAA 1995 (~dialogue theory); now triggers to Fed EA gone (fr both Fisheries Act and
10
Navigable Waters Act), so now completely discretionary
R. v. Hydro-Quebec, 1997, SCC
Issue
Constitutionality of
impugned provisions of
CEPA
Cda arg: (1) valid
exercise of crim. law
power (public purpose
reqt being “protection
of health”); (2) POGG
Ntl Concern; (3 –
intervenor) T&C; P&S
of law is simply control
of pollution caused by
toxic substances
Majority, LaForest, J (x 5 judges)
*case about enviro. protection
Dissent, Lamer, CJ (x 4 judges)
*case about “what is the crim. law?”
Quotes LaForest in Oldman River & “it
is an intl problem, one that requires
action by govts at all levels”
P & S of Act = “protection of enviro and human
life & health fr harmful substances by regulating
these substances”
Enviro. not distinct subject matter to be
assigned to Fed/Prov, but diffuse subject
matter to be divided b/w two govts
(double aspect/both govts can govern)
Re #1: Crim. law reqs prohibition, penalty &
protection of public purpose; argued that purpose is
protection human health, but:
(1) Public purpose: “While the protection of enviro.
is legit. public purpose, which could support the
Re #1: Crim. law, s. 91(27) =
enactment of crim. leg., we believe impugned
prohibition + penalty w legit. public
provision of Act are more an attempt to regulate
purpose (here, all reqts met; legit public
enviro. pollution than to prohibit or proscribe it”
purpose is protection of enviro); in
(leaves door open; but must “outlaw” behaviour,
Modern Reg. State, Feds should not be
QB arg: CEPA ultra
not merely regulate it; “true crime” rather than reg.
ltd to prohibition + penalty, need more
vires Parl. due to
offence  “[here,] scope extends well beyond
flexibility in Crim Law power –
regulatory, not crim.,
matters relating to human health into realm of
“essential in dealing w amorphous
nature (Prov. waters
general eco. protection”)
subjects like health & then enviro”;
governed by general
(2) Prohibition + penalties: certain provisions have
note: pretty far-reaching power as
prov. heads of power no prohibition (put leg under microscope);
LaForest frames it (emphasis on strong
prop/civil rights,
distinguishes RJR-MacDonald (which upheld Fed.
screening process to get toxic chem.
matters of private
leg as crim. law) based on its broad prohibition w
listed)  once Fed est. public purpose,
nature); P&S of Act is
exemptions, & CEPA’s reg. scheme (w Min.
only 2 things that can fetter this: Charter
enviro. protection
discretion), as well as its narrow focus and CEPA’s
and colourability)
broad focus; (Extra) Provs can be exempt if they’ve
Notes
Maj. & Dissent agree
Note Re. #2: Ntl Concern branch allows reg’d already, yet Provs can’t enact crim law…
that enviro. protection Fed. govt to leg. exclusively in new head (contradictory)
is legit. exercise of
of power (vs. Crim Law more isolated –
Re #2: POGG Ntl Dimensions branch: reg. of
(Fed) crim. law power; we’ll use that)
enviro pollution is not “single, distinctive,
approves embedding
indivisible”  too broad; also, fails “prov.
Re QB arg: arg that CEPA reg. scheme
crim law measures in
inability” text from Zellerbach
fails as regs. needed b/c of complexity
broader reg. scheme
of subject matter (regulating toxic
Re #3: Trade & Commerce power: even if sections
1st case contesting
substances)
could be justified as reg’g T&C, would have to be
const’lity of CEPA, in
severed & are incapable of standing on own
Decision: valid exercise of crim. law
wake of success of Fed
power (regs needed due to complexity,
govt in Zellerbach
Decision: CEPA cannot be upheld under Crim law,
but not overbroad/overreaching, as
(string of QB cases
POGG Ntl Dimensions or T&C; ultra vires Parl.
overlying law is crim. law: prohibition +
challenging Fed laws)
and should be struck down
penalty w public purpose)
Facts: CEPA = omnibus statute, delegated authority to Min. to add toxic substances to list (either prohibited or regulated);
accidental discharge of PCB water into QB river; charges laid against Hydro-QB under CEPA
JH: QB CA: P&S is protection of enviro. (w an effect of protecting human health); CEPA provisions ultra vires Fed.
govt.  appealed to SCC
Underlying Lamer’s Dissent: worries Maj. diluting moral currency of crim law (allowing it to be harnessed for whatever
public purpose govt of day wants to do); concerned about creeping Reg. state; this kind of leg allows bureaucrats to
criminalize conduct.
Q’s at p. 211:
 1. Maj. focuses on a flexible interpretation of public purpose, looks at Act as whole for prohibition + penalty; vs.
Dissent sees purpose as regulating enviro. protection & looks at Act provision by provision
 2. Maj focuses on implementation; Dissent focuses on what could be listed in theory…
 3. Maj. thinks broad jurisdiction under Crim. law still allows Provs. to leg; vs. Dissent thinks it pushes Provs. out
 4. CEPA’s potential for being upheld under POGG?  v. broad, arguably more so than Zellerbach’s marine
pollution head of power; T&C: only specific provisions reg. T&C and can’t stand on their own (as per Dissent)
11
The Politics and Practicalities of Jurisdiction over the Enviro., pp 212-222
William R. Mackay, “Cdn Federalism and the Enviro: the Literature”, 2004
 Historically, cts recognized concurrent jurisdiction of two levels of govt in enviro policy
 Two ct decisions (Zellerbach, Hydro-Quebec) have increased potential scope of Fed leg. power
3 themes:
1. Factors affecting Fed role in enviro. policy (fr. fear of over-stepping constitutional boundaries, to now, fear of
prov. resistance):
1. Constitutional constraints:
 Authors though provs. had strong claims to jurisdiction over enviro. generally; note: before
Zellerbach and Hydro-Quebec, which broadened Fed’s Crim law and POGG powers w re. to
enviro. mgt
 Feds now leg: CEPA, toxic regs, CEAA, fed “Green Plan”
2. Fear of prov. resistance:
 This arg used as “smokescreen for basic unwillingness to take necessary actions”  provs
continue to exercise greater share of enviro authority, Feds favouring “collaborative approach”
 Feat incl. separatist sentiment in QB & objections fr resource-rich provs.
3. Waxing/waning of external pressure on Feds**:
 International pressures
 Electoral incentives (usually diffuse benefits, concentrated costs  politically unwise
 After enviro disasters & when economy doing well, Fed intervention in enviro.
protection ok (benefits less diffuse)
st
 1 generation enviro policy (up to mid 1980’s): air/water pollution, depletion natural resources
 2nd generation enviro policy (after mid 1980’s): diverse global and local issues
2. Dominant pattern of intergovernmental relations in Cdn enviro. policy (Collaboration)
Collaboration vs. Competition
 Collab. likely to happen when: (1) more likely to give greater control over domestic policy
agendas, & (2) when intergov’t conflict imposes political costs
 Pros: duplication by prov/fed govt avoided, intergov’l conflict reduced
Cons of collaboration:
 “Race to the bottom” (weak enviro. standards, creation of pollution havens)
 Don’t get healthy prov/fed competition to satisfy voters, OR ea. level of govt overseeing other
(as we would in competitive)
 Leads to devolution of leg. power to Provs, results in deleterious effects on enviro. (see below)
 Intergovt’l agreements: non-enforceable legal commitments (don’t meet legal reqts of K), “soft
law” ~sim. to framework conventions in intl law
Tollefson: Current trends:
 Devolution (may be collaboration or forced collaboration)
 Cutting funding in ad hoc way (i.e. Feds not regulating navigable waters, fish habitat, maybe
SAR? ~form of devolution?)
 Interesting q: can province step in and reg. the areas Feds have vacated? i.e. Sage Grouse
case (concludes that AB failed miserably in doing what it needed to do under SARA)
3. The preferred model of intergovernmental relations w re. to enviro. policy (Cooperation w both)
Fed vs. Prov. control:
Federal govt (pros):
 Economies of scale on studying enviro. probs.
 Fed. govt better able to respond to interprov. spillover effects
 Can resist strong regional interests
 Ntl standards can avoid “race to bottom”
 Provs. lack resources and political will to screen info. fr diverging interest groups; sometimes
download enviro. mgt to other groups (Crown corps, local govt, even private co’s)
Prov. govt (pros):
 Better satisfy diverse citizen preferences
12


May encourage policy experiment’n (gauge effectiveness w/out subjecting whole country to it)
Subsidiary principle: tailor solutions to local circumstances
 neither level of govt. could be divested of its power to manage enviro.
Aquaculture, pp 223-228
History: Fed govt gradually let Provs legislate w re. to fisheries (despite pretty clear constitutional power for Feds)
… until Morton successfully challenged Prov. leg. in BC
Morton v. BC (Minister of Agriculture and Lands), 2009, BCSC – aff’d at BCCA
Issue
Constitutional validity of 2 prov
statutes & 2 prov regs (i.e. BC
Fisheries Act, etc.)
Notes
Affirms Fed. jurisdiction over
fisheries
Ratio
Fish farms are fisheries for purpose of constit’ty, so per s. 91(12) allocated to Fed.
govt (& exclusive jurisdiction, as per Northwest Falling)  double aspect doctrine
cannot apply to exclusive jurisdiction; paramountcy cannot apply b/c there can be no
valid inconsistent Prov leg (no valid Prov leg at all!) when jurisdiction exclusively
Fed
Fish farms cannot be private unless expressly granted so by Fed govt  here, farm
wasn’t, so public fishery
Out of step w 2 current trends:
Other than 2 provisions re. marine plants, dominant purpose of Prov. leg is reg’g
(1) Double aspect: typically,
aquaculture, so effects on Fed. fisheries head of power is not incidental / interferes w
modern approach is Cts should
core of matter w/in exclusive jurisdiction of Fed.  const’ly invalid Prov. leg
strive to uphold leg rather than
Note: only way Prov. can get involved is by signing agreement w Feds
striking it down
(2) Subsidiary principle:
Decision: due to exclusive jurisdiction of Feds over fisheries & the classif’n of fish
typically, govt should allow ppl
farm in q as public fisheries, Prov. leg invalid, except for few provisions re. marine
closest to problem to regulate that
plants that were read down (so still in force)
issue (i.e. prov govt &
aquaculture in Prov. waters)
Facts: Granting of Prov fish farm licenses allows conduct that is directly contrary to fed. Fisheries Act
Claims: (App) (1) Leg is P&S mgt of ocean fisheries (Fed. jurisdiction); Fed. can’t abdicate/delegate resp. to reg. fisheries
to Prov.; (2) if leg is in Prov. jurisdiction, invalid due to IJI OR paramountcy; (Resp) (1) operation not fishery; (2) in
alt., if it is a fishery, it’s a private fishery so not subject to Fed leg.
Emerging Issues in Jurisdiction over the Enviro.
Aboriginal Rights, pp 228-242
Section 35 rights include:
 Treaty entitlements
 Other, non-treaty rights, incl:
1) Cultural rights (hunt, gather, fish, use timber) [as per Van der Peet]
2) Ab title (exclusive use & occupation) [as per Delgamuukw]
 Sui generis
 Unalienable
 Held communally
Section 35 gets into Ct:
1. Defensively: response to reg. prosecution against something they saw as their Ab right [Sparrow, Van der Peet,
Gladstone]
o Crown’s justification test: if leg. “min’ly impairs” s. 35 right AND advances legit overarching govt. concern
for resource conservation, can override rights (otherwise Ab ceremonial & food reqts win out)
2. Judicial review: used as a “sword”, to challenge decisions of agent due to inadequate consultation when project
potential to infringe Ab rights as affirmed in Haida Nation [Taku River, Mikisew Cree, Dene Tha’]
o Cts seeks to define Crown’s duty to consult and accommodate, w re. to unproven (non-Treaty) rights
3. Title claims: only 2 have gone to trial, Delgamuukw and Williams (Tsilhqot’in) – Williams says in obiter that if
Ab title were declared, Prov. laws would be ultra vires on that territory (SCC granted leave to appeal in Jan 2013)
o Also, constitutional cases attempting to limit applicability of Prov. leg on Reserve [Kitkatla, Paul]
13
Taku River Tlingit First Nation v. BC (Project Assessment Director), 2004, SCC
Issue
FN: we weren’t properly consulted/ accommodated
BC: FN has no right to be consulted until Ab rights
proven in Ct or signed treaty
Notes
Same time as Haida (prov req’d to
consult/accommodate, but not get agreement);
distinguished fr Haida as there was no consultation
in strategic stage, here there was
Scope/content of consultation varies w strength of
claim & seriousness of potential impact to rights
(as per Haida)
Considers former BC EAA (Ct found duty to
consult was sufficient under Ab section of EAA,
but v. diff from current Act
Ratio
BC’s position incorrect in law, “impoverished” (p. 232) – directly
contrary to Haida judgment; scope/nature of duty must be
calibrated w strength of claim and seriousness of potential impact
(acceptance into treaty process prima facie case in support of Ab
rights); not under obligation to come to agreement, but consult &
accommodate
p. 233: “The duty to consult arises when a Crown actor has
knowledge, real or constructive, of the potential existence of
Aboriginal rights or title and contemplates conduct that might
adversely affect them.”
Two main reasons for decision:
1. Though not perfect record, no evidence on record that Crown is
acting in bad faith (acting inconsistent w “honour of Crown”)
2. We’re on journey: this has certificate (coming fr strategic stage),
but Crown must continue to consult (during operational stage)
Decision: consultation enough to meet honour of Crown/Prov duty
 how may it be applied in future? (Enbridge)
Facts: Proponent wanted to re-open mine which req’d building road through Taku’s trad. territory; consulted during EA
process (incl. mitigating measures and responding that certain of Taku’s requests were outside ambit of cert. process);
Taku in process of negotiating treaty w BCTC; BC EAO reco’d to Min. that project be cert’d to go ahead; FN JR’d cert.
issuance (goes to Ct same time as Haida Nation)
Paul v. BC (Forest Appeal Commission), 2003, SCC
Issue
Rship b/w valid Prov leg
and matters under Fed head
of power (i.e. s. 91(24)
“Indians, and lands
reserved for Indians”)
Paul arg’s doctrine of IJI
applies; Prov’y constituted
FAC to hear/rule on Ab
rights args that occur while
exercising Prov. mandate
trench on “core of
Indianness”  FAC cannot
hear args based on Ab
rights (has no jurisdiction)
Ratio
Uncontested facts:
1. All parties agree Forest Practices Code valid Prov law
2. Leg would remain valid, as long as doesn’t touch on “core of
Indianness” or violates s. 35 rights (only “incidental effects”)
IJI doesn’t apply b/c:
1. Diff b/w legislating and adjudicating; doctrine of IJI focuses on
legislative acts in a Prov (Prov can’t legislate in manner that goes to
core of Indianness, re. Ab rights/title, etc., but Prov Ct can adjudicate
using Constitution & Fed laws and it’s created by Prov statute just like
FAC…)
2. Policy reasons: efficiency (don’t want to see legal proceedings
bifurcated), decision of FAC on Ab rights is q of law (or at least q of
mixed law and fact) so will be reviewable on correctness standard and
appealable to BCSC anyways (“he’ll get his day in Ct”)
Notes
Diff. b/w
legislating and
adjudicating
means Prov.
tribunals have
jurisdiction to
hear cases
involving
defenses of
s. 35 rights
Decision: IJI doesn’t apply, FAC has jurisdiction to hear issues of Ab
rights (& has jurisdiction over Paul’s case)
Facts: Paul member of Ahousaht FN, questioned ability of Prov. to govern his using cedar; sought permission of Chief,
didn’t go to local board; prosecution was forced, so Paul challenged authority of Forest Appeals Commission over him
JH: CA: IJI applies, touches on core; SCC?
Municipal Jurisdiction, pp 243-257
 Provs const’ly empowered to pass on aspects of own jurisdiction to municipalities (i.e. Provs make Land Use plans,
municipalities roll them out w separate policies)
 Growing trend: municipalities want to use reg. powers to promote enviro. sustainability; at odds w constitutionally
vested prov/fed powers
 SCC in Oldman River: Ct should respect/promote ability of both levels of gvt to tackle enviro issues
14
114957 Canada Ltee (Spray-Tech, Societe d’arrosage) v. Hudson (Ville), 2001, SCC
Issue
1. Whether town acted w/in authority in
enacting bylaw reg’g/ restricting pesticide use
2. Even if intra vires town, is bylaw inoperative
b/c conflicts w Fed/Prov leg?
Apps claim bylaw ultra vires & discriminatory
against Apps
Notes
Precautionary principle invoked to uphold
constitutionality of municipal bylaw restricting
use of pesticides
Purposive interpretation of municipal bylaw
p 244: L’Heureux-Dube, at para 1: “our
common future, that of every Canadian
community, depends on a healthy enviro”; cites
R v Canadian Pacific at para 55: “enviro
protection has emerged as a fundamental value
in Canadian society”
Ratio
Subsidiary principle: govts closest to issue should leg.
CTA s. 410(1) permits municipalities to enact bylaws for POGG,
health, general welfare in municipality; however, w omnibus act, Ct
must scrutinize for true purpose
Shell Canada v. Vancouver: generosity in interpretation (“barring
clear demonstration that municipal decision beyond its power, cts
should not hold so”), test for det’g if bylaw enacted for “municipal
purpose”  applied: must read in implied purpose (minimize use of
allegedly harmful pesticides to promote health of inhabitants), so falls
under CTA s. 410(1) purview of “health”
Supported by international law (which can be used to aid statutory
interpretation, as per Baker), as Canada advocated inclusion of the
precautionary principle in Bergen Conference negotiations
Re. conflicting w Fed/Prov laws, just b/c Fed has legislated in area
doesn’t mean municipality can’t - paramountcy requires conflict, must
be “impossibility of dual compliance”
Decision: Bylaw intra vires town as function of CTA s. 410(1) (for
purpose of inhabitants’ health)
Bylaw doesn’t contradict prov/fed law, rather is complementary
Facts: Town of Hudson is municipal corp. under Cities and Towns Act (omnibus Act); App’s landscaping co’s served w
summons to appear at Municipal Ct w charges of violating Bylaw 270; suspension of proceedings to challenge vires of
bylaw at QB Sup Ct
JH: Sup Ct: bylaw intra vires town; QBCA: upheld
Environmental Regulation
Context and Perspective, pp 260-278
D. Paul Emond, “The Greening of Enviro. Law” (1991)
Dvpt of enviro law in 3 stages of consciousness:
 1. Symbolic reg: “gross pollution”, i.e. black smoke; reactive (i.e. to enviro disaster or revelation) rather than
preventative
o Shifts liability fr regulated to regulator (if standard met, further issues are prob w standard)
o Defining the prob as mkt-related or tech failures, then def of success also flawed
o Reg. solutions like shooting moving target, ineffective
 2. Preventive reg: more subtle pollution, i.e. chemicals (dioxins, PCB’s  birth defects, allergies, mutations),
involves land use planning, resource allocation decisions
o Relies on adjudicative model, little op for creative solutions
o EA saved for “mega proj”, majority subject to often ineffectual approach process (“built-in bias for status
quo”)
 3. Co-operative prob solving: move away fr competitive, adversarial rights-oriented model that focused on defining
rights to new model
o Concern that mediation (focus on compromise) will deter large-scale change
 govts should legislatively mandate negotiation/mediation
R. Michael M’Gonigle, “Taking Uncertainty Seriously: From Permissive Reg. to Preventative Design in
Enviro D/Making” (1994)
“Permissive regulation approach”: allowable discharge limits for hazardous chemicals; inherent contradiction, issues w this
approach are:
15
 Assumption that enviro assimilates waste (w/out harm)
 Assumption that reg based on firm scientific knowledge (failure to acknowledge implications of scientific
uncertainty):
o reg. occurs on substance-by-substance basis so many (often new) chemicals escape reg. due to testing being
prohibitively expensive and time-consuming
o testing focuses on toxicity rather than cumulative effects (more likely, long-term effects v. dangerous)
o Cts reluctant to accept probabilistic evidence for causality
o Temporal/spatial latencies  reg. delayed til after harm shows, causation issues for Pls (intervening causes,
remoteness, foreseeability issues in Ct)
 Assumption that agencies can effectively reg. (unrealistic expectation on reg. agencies):
o Req. high levels staffing and resources  agencies rely on industry research/self-policing
 leads to externalized costs of industrial production through degradation of enviro quality and inc. in
public health risks
Negotiation for setting standards may be effective, but not for ensuring compliance (contrast w last article by Emond)
Incremental reform possibilities:
 Lowering standard of proof (US: est. a fact on “preponderance of the evidence”)
 “Creation of risk” as evidence; “risk-benefit analysis” approach (cost of risk to Pl outweigh benefit to D? calculation:
cost of enviro degradation x probability of occurrence)  diff. in implementing approach due to inability to quantify
costs of degradation or % likelihood of occurrence  currently, Canada doesn’t allow this
 Leg. that secures right to enviro. quality (i.e. number of US states)
 Shifting burden of proof to D (to prove he wasn’t cause of harm):
o Alt. liability (Cook v. Lewis scenario): 1+ possible causes of harm, D must prove on BoP; requires (1) harm
occurred, (2) limited number of possible causes, (3) proof D was neg.
o Strict liability: CL tort standard, removes (3) above of proving D was neg., however, D can bring (4) “due
diligence” defence
 rebutting due diligence defence req’s expert witness, subject to s. 7 or 11(d) Charter challenges
Structural reform possibilities:
 Waste reduction deals w waste at source rather than after generated; “precautionary approach” by creating
presumption of harm
 i.e. at state-level in US, as well as Fed. Pollution Prevention Act  Cdn leg. policy lags far behind
 inescapable presence of uncertainty should shift reg. burden onto those seeking to use & profit fr common enviro’s
questionable assimilative capacity
 economic penalties essential tool
 judiciary must be more cognizant of implications of scientific uncertainty, reallocate burden of proof
Stepan Wood, Georgia Tanner & Benjamin T. Richardson “Whatever Happened to Cdn Enviro. Law?”
(2010)
 90’s Canada leading in enviro policy  2010 lagging
Symptoms of decline:
 Policy instruments: binary choice b/w “tax and control” & voluntary action; whereas, other places have implemented
eco tax, extended producer responsibility (EPR), tradable pollution allowances (cap & trade)
o QB and BC adopted modest carbon taxes, but that’s about it
 Economic instruments: lack of use, few ex.’s such as amending Income Tax Act to encourage donating land to
conserve  mostly subsidies to clean tech
 PC and Libs to blame; pulling out of Kyoto, etc.
 Even human rights leadership lagging (access to info)
 Leg. inaction: failure to implement existing laws, i.e. National Parks Act, interpreted by Fed Ct to not require
ecological integrity to be “determinative factor” and require balancing
 Other countries leading, i.e. Cali & Germany; US otherwise setting bar low, Cdn committed to maintain par w US
 Pollution reg: model of self-inspection for Nat Resources, Mining, Fisheries Mgt, delegating to arms-length agencies
w limited accountability  effectiveness/reporting of non-compliance questioned (“reg. flexibility”)
16
 Financial economy: socially resp investment (SRI) not encouraged as no reqt to disclose policies for taking into acct
social, enviro, ethical matters in investment decisions (i.e. CPP reform rejected)
 Even w other countries struggling to achieve effective legal/policy responses to worsening enviro conditions, Cdn
worse
 Greater reliance on legal mechanisms going forward? Reliance on legal rights as govt clearly isn’t going to
effectively regulate.
1) What perspective/context informs this reading? Lagging enviro record on intl stage as evidence of CC, chemicals
persisting in enviro, stronger/indisputable
2) What linkages/implications does it have for the course so far? political background; we will have to rely on legal
mechanisms available, if we’re at the “peak” of political will; Constitutional law cases where Ct came out in favour of
Fed/Prov cooperation, which requires innovation  arguably isn’t happening
3) Which other reading(s) assigned for this session is it most similar to? Howlett article on instrument choice (govt using
least coercive model possible, why we’ve ended up w lack of innovation)
4) Which other reading(s) assigned for this session is it at odds with or depart from? two previous articles (Emond,
McGonigle) fr. 90’s
5) Why? Doesn’t mention judiciary, focuses on policy; not particularly positive, lacks the optimism present in earlier articles
fr. 90’s
Enviro. Standard Setting & Forms of Standard Enviro. Standard Setting, pp 278-285
C. Tollefson, F. Gale & D. Haley, “Setting the Standard” (2008)
Standard-setting process:
1. Set goal outcome (political debate, judgment about values)
2. Est. criteria by which you’ll measure goal achievement (involves science, “dose-response” rship w limited
number parameters like threats, risks, etc.)
3. Ambient standard (receiving enviro’s carrying capacity, def. upper OR lower limit on mass/concentration of
harmful substances)
4. Creating standards (to define permissible behaviour of party that standard’s trying to regulate)
Forms of standard:
1. Performance-based standard: outcome-based, broad discretion as to how to achieve outcome; preference in
Canada for air and water pollution reg [wouldn’t want to reg. aviation and nuclear industries only using perfbased standards; however, still seems to be reflex for perf-based standards, though flawed]
2. Technology-based standard: specifies specific tech; preference for US for air and water pollution reg
3. Management-based standard: oblige operators to undertake specific mtg-planning activities
Interjection at which stage of process [p. 281]:
Stage of production
Planning
Form of standard
Management-based
Acting
Technology-based
Outputs
Performance-based
Prescriptiveness and Standard form:
Most policy-makers feel that “prescriptive regulation” is bad  pref. for outcome-related reg. (i.e. Gordon Campbell’s
“results-based” forestry code)
 However, Tollefson posit that reg. is by def. prescriptive; “prescriptiveness” dependent on context; when
analyzing look at way firms act in mktplace and distinguish b/w diff moments in process
Private autonomy vs. certainty:
 Perf. standard sometimes preserves private autonomy (but depends on congruency b/w objective & form of
standard)
o i.e. qualitative (“protect slope stability”) higher autonomy vs. quantitative (“don’t log on slopes stepper
than x”)
 May be argued that more generic standard = higher risk objective being compromised
 “Ownership of uncertainty”: should greater private accountability (in event objective compromised) be “quid pro
quo for greater private autonomy? Or should co’s be allowed to claim “due diligence” like their reg’d
counterparts?

17
Public participation: allowing broad private discretion in how to achieve objective may impact PP as solutions
become more complex; may even impact regulators’ ability to enforce (req. 3rd parties, etc.)
Measuring, Evaluating, and Verifying Perf.
 Though most effective measure is ambient value, that’s affected by many other natural & non- sources, so
usually quantitative meas’mt of incremental impact of reg’d activity
 “Dose-response” rship: nature of rship b/w behaviour standard targets & its impact on ambient enviro.
 “One size fits all” approach: under-protective in some circumstances & over-protective in others
 Costs: who bears costs for measure, evaluate, etc  huge inc. to govt admin costs.
o Influenced by type of standard (open-ended ones harder to enforce)
o If not enforced properly, lose perceived legitimacy & ultimate viability
Choosing optimal form of standard:
 Context-specific factors: (1) straightforward matter, able to measure at low cost  perf-based standard; (2) diff.
to measure, reg’d sector homogenous  tech-based (esp. if rship b/w action- output well-understood); (3)
heterogeneous conditions/enterprises  mgt-based standards
The Emerging Governance-based Approach to Enviro Reg., pp 285-302
Command and control vs. new methods (incl. market forces and civil society)
Michael Howlett, “Policy Instruments, Policy Styles, and Policy Implementation: National Approaches to
Theories of Instrument Choice” (1991)


“Policy instruments” = techniques at disposal of govts to implement public policy objectives
Origins w Theodore Lowi work (categorize types of policies & place on continuum of coerciveness)
Canada: Degree of legitimate coercion spectrum (Doern spectrum):
Private
behaviour (selfregulated)
Exhortation
(Speeches)
Expenditure
(Subsidies)
Regulation
(Taxes/
tariffs)
Public
Ownership
(Crown
corps)
 choice of instrument on spectrum based on ideology, with contextual politics thrown in; moves up spectrum w
societal resistance or to achieve policy objective
Kathryn Harrison, “Talking with the Donkey: Cooperative Approaches to Enviro. Protection” (1999)
International shift:
 Away fr traditional “command & control” twd cooperative approach
o i.e. President Clinton statement
o i.e. Netherlands, Cda, Aus, UK, Japan (EU Action Plan: voluntary agreements & other forms self-reg)
Command & Control vs. Cooperation:
 C&C: gen. disenchantment (economically inefficient, dvp regs slow, end-of-pipe solutions rather than pollution
prevention; if specify tech, rather than perf standards, stifles innovation, failure to provide incentives to go
beyond compliance; unnecessarily adversarial & legalistic)
 Cooperative: choose b/c: (1) concerns re. inflexible regs affecting competitiveness; or (2) budgetary concerns
(rather than higher enviro. protection)
Def’g Cooperation:
 1. “Who is working together?”: partnerships b/w bus. & govt (to exclusion of other parties)  could cause
additional conflict
 2. Commonality of objectives: though due to govt’s ability to coerce, ask how cooperative really is (continuum
of explicit  implicit coercion)
 3. “Working together”: can govt choice not to intervene at all be considered bus-govt cooperation?
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Typology of Cooperative Approaches (Doern & Phidd):
most coercive
*Regulation
least coercive
Govt.
enterprise
Expenditure
*Exhortation
*Inaction
1. Regulation:
 Risk of frequent resort to “stick” may destroy good will of law-abiding firms who resent being treated like crims
 “Culture of resistance” may emerge where firms help ea. other exploit loopholes
 Proponents for cooperative enforcement advocate “tit for tat” strategy (initial forgiveness, increasingly stringent
sanctions in face of recalcitrant behaviour)
 Assumes more “good apples” than “bad apples”; though other scholars contest almost all firms “bad apples”…
quantitative comparison actual rates compliance conflicting
o Efforts to promote flexible & cooperative enforcement that would provide benefits to honesty (p. 292)
 Cooperative dvpt of reg. standards (rather than just during implementation): (1) # participants can vary; (2)
approaches differ in weight given to input fr non-govt actions & emphasis places on consensus
4. Exhortation:
 Govts persuading bus. to change ways (nominally voluntary, vary in degree coerciveness:
o Most coercive (closest to reg.): voluntary agreements / govt-sponsored codes of conduct; usually
accompanied by explicit/ implied threat of reg.; may be nonbinding “gentlemen’s agreement” or legallybinding K
o Mid-level: “voluntary challenges”; i.e. Env. Cda’s Accelerated Reduction/Elimination of Toxics
program)
o Least coercive: education or info dissemination programs (twd bus. community or consumers); i.e.
pollution prevention clearing houses, enviro. awards
5. Inaction:
 i.e. Forest Stewardship Council ISO 14000
 Parallel exhortation programs above but w some other entity than govt doing educating or persuading
Jody Freeman & Daniel Farber, “Modular Enviro. Reg.” (2005)
Overview of “command and control” reg. vs. market mechanisms (pros & cons of each)
Market mechanisms:
Pros:
 Emissions trading schemes (i.e. Clean Air Act Acid Rain Program reduced SO2 reductions)
 may be applied to carbon one day! or watershed based effluent trading, wetlands mitigation banking
Cons [also C&C pros]:
 Political considerations tend to dominate initial allocation of entitlements in mkt regimes (i.e. allocation SO2
units in Acid Rain program)
 Prices can be set inaccurately (as price must reflect accurate costs of pollution and a benchmark for this is
unavailable)
o Natural resources, like ecosystems, enormously diff. to value & trade
 More system tailored to local conditions, more cumbersome system becomes
 Mkts tend to lead to “hotspots” of concentrated pollution (distribution inequity)
 Generally req. easily monitored indicator that can be subject to trading or tax – can be diff. in circumstances
where lrg # sources or when emission rates hard/expensive to monitor (i.e. pollutants that contribute to groundlevel ozone)
Command & Control:
Cons:
 Prescriptive reg: industry may say too costly, too intrusive, too “centralized”/coarse grained, inhibits policy &
institutional innovation that only comes fr local knowledge/experience
 Inhibits tech. innovation b/c no incentive to dvp new techs if tech is dictated or to reduce emissions past
mandated level
 Info reqd for prescriptive reg. in hands of industry, little incentive to reveal it fully (w/out it, implementation by
19

Pros:


govt is difficult)
Procedures for prescriptive reg. slow, cumbersome, conflict ridden (so costly)
Many of the assumptions re. cons of C&C (uniformity, inflexibility, cost) either wrong or exaggerated
Prescriptive reg. still necessary as backbone of reg. system b/c mkt mechanisms risky & frequently don’t deliver
on promises  empirical record on their perf. is, in fact, mixed
 “either/or nature of debate echoes dichotomous nature of federalism debate”; no “one size fits all” approach to regulation,
must rely on mix of mechanisms
 Mkt mechanisms rely on some prescribed govt limit (i.e. the “cap” in C&T) vs. prescriptive regs. (i.e. Techbased standards) not as uniform & rigid as some would suggest
“Challenge now is to mix and match instruments in a way that is sensitive to the contexts – political, economic,
geographical… each [instrument] require[s] effective implementation and monitoring”
C. Tollefson, D. Haley & F. Gale, “Setting the Standard” (2008) cont’d
1st Generation Enviro. Laws:
Most US enviro. laws enacted b/w 1970-80; almost all employed best avail. tech (BAT) standards
 Applied universally on national basis
 Provided legal means by which citizens could challenge permit holders & govt for not complying (“citizen
suits”)
 generally, brought significant improvements in enviro. quality
Criticism: yes, successful in “picking low-hanging fruit”, but “one-size-fits-all” approach ignore basic cost-benefit analysis
(don’t take into acct. diff. abilities of co’s to meet BAT standard); don’t encourage R&D in further reductions in emissions
2nd Generation Enviro. Laws:
Late 80’s, early 90’s, classic showdown b/w proponents of free mkt & defenders strong, interventionist state  mid 90’s
Clinton administration
 Pollution credit trading, new incentives (incl. reg. relief for superior enviro. performers)
 Now, debate dominated by US legal scholars & economists began to expand, notably “Smart Regulation” (“mix
of policy instruments tailored to the particular goals and circumstances of the reg. context”); govts should “steer
not row” & “govern fr a distance”
 i.e. in US, fed. agencies now directed to specify perf. objectives, rather than behaviour, whenever this is feasible
as they craft new regs.; many fed. agencies piloting perf-based reg. programs
N. Gunningham, “Reconfiguring Enviro. Reg.: Next Gen. Policy Instruments” (nd)
Summary: more positive light on “command and control” reg.
C&C considerable success, esp. in terms of air & water pollution
 however, “1st gen. enviro. reg” widely criticized
Yes, it’s only part of the solution, but in time of shrinking reg. resources, need option in absence of credible enforcement
regime  must “extract the “biggest bang” fr a much diminished “regulatory buck” (p. 300)
Design a 2nd gen. of enviro. reg. still involves govt intervention but selectively & in combo. w range mkt & non-mkt
solutions; “one size does not fit all”
Spectrum of policy instruments (most interventionist to least):
Command &
Control
Self-reg,
economic
instruments
Pure voluntarism,
education, infobased approaches
2. Self-regulation: organized group regs behaviour of members
Pro: b/c standard setting and id’g breaches are resp. of industry (& they know their industry best!)  arguable leads to more
practicable standards
20
Con: rarely effective in achieving compliance (at least when used as stand-alone strategy w/out sanctions)
3. Voluntary Agreements: usually b/w govt & industry; incentives arise fr mutual interests rather than sanctions
Categories:
(a) Public voluntary agreements  little evidence they work
(b) Negotiated voluntary agreements** usually enacted w backdrop of threatened leg.  little empirical
evidence, not encouraging
Informational Reg. & Civic Environmentalism: involves state encouraging/ requiring info re. enviro. impacts but w/out
directly req’g change in practices; relies on economic mkts & public opinion as mechanisms to bring about improved perf.
Pro: cost-effective, less interventionist
i.e. community right to know (CRTK) or pollution inventories
 works best w larger co’s & environmentally aware communities
Civic Regulation: civil society by-passes state to influence corps, consumers
i.e. focus on highly visible branded retailers
i.e. certification strategies (FSC – links together diverse, often antagonistic actors fr local, ntl, intl levels)
Erin note: MSC hugely successful w large grocery chains like Loblaws/Superstore getting on board
 govt becoming more involved, & many 2nd gen. policy instruments geared toward empowering various institutions of civil
society to play more effective role in shaping bus. behaviour, giving environmental NGOs “seat at the table”, standing to
bring legal action, or info to threaten rep. of capital/lrg corp.
Enviro. Reg, Innovation and Economic Performance, pp 302-316
Stefan Ambec, “The Porter Hypothesis at 20: Can Enviro. Reg Enhance Innovation and Competitiveness?”
(2011)
Porter hypothesis  relevant even now?
 challenged traditional economists’ view that enviro reg reduces profits (tax pollution, by-product of production
process which was free before, divert capital away from productive investments)
 pollution is often waste of resources, reducing pollution leads to improved productivity
 Enviro. reg (esp. mkt-based) can “trigger innovation” that will offset costs of compliance  “innovation
offsets”; b/c of 5 reasons:
1. Reg. signals likely resource inefficiencies
2. Reg. focused on info-gathering raises corp. awareness
3. Reduces uncertainty that investments to address enviro. will be valuable
4. Creates pressure
5. Levels the playing field
 Note: PH only says well-designed reg. lead to innovation (not all)
PH Criticism:
 Rests on idea that firms often ignore profitable ops (incompatible w “assumption of profit-maximizing firms”)
o And if isn’t true, how are regulators in better position than managers to find these profitable bus. ops?
 However, in reality, firms might not be making optimal choices for many reasons, such as imperfect info or
org./mkt failures…
Design of Policies to Enhance Competitiveness:
 Both innovation & competitiveness depends on context
Enviro. Policies
 Type of reg. important; must: (1) create max. op for innovation, (2) foster continuous improvement, (3) leave as
little room as possible for uncertainty at every stage.
 Narrow version of PH (“weaker hypothesis”): strict reg. leads to more innovation  fairly well-established
now
o i.e. switch fr BAT to trading program for SO2 resulted in innovations & transfer of resp. fr chemists to
VPs, but at higher cost
[vs. Stronger hypothesis that strict reg enhances business performance  mixed results] **see Tollefson note
Organizational or Governance Conditions
 Studying since shows ability to support PH depend on stage of dvpt of firm
21
Summary: 20 yrs later, theoretical args that could justify PH now more solid than before
**When Porter says “stricter” enviro reg, what does he mean?
 Tollefson: don’t know, but could see pref. for results-based reg. when discussing enhancing innovation; this is
problematic, as skews data due to type of reg. selected
William Lahey & Meinhard Doelle, “Negotiating the Interface of Enviro. and Economic governance: Nova
Scotia’s Enviro. Goals and Sustainable Prosperity Act” (2012)
Overview:
 NS’s Enviro. Goals & Sustainable Prosperity Act (EGSPA) into force 2007
 2 overarching goals: (1) intl leadership “one of cleanest enviros in world”; (2) Prov’s econ. perf. to level equal or
above Cdn avg
 21 discrete enviro goals: all being pursued or have been achieved (most on time!), i.e. substantive targets: GHG
emissions, air pollutants, energy & process targets: resource mgt, wetlands, brownfield re-dvpt
o Most dvp’d w enviro. protection, not econ. prosperity in mind
o Substantive goals req. other levels of govt. & non-state actors
o Process goals more in control of prov. govt
EGSPA’s Uniqueness:
 Diff. fr Green Plan as mandates gvot to follow through on tis enviro. policy commitments b/c it is law
 It contains schedule for 21 goals’ achievement
 Key aspects: (1) “soft reg” to policy-making process of govt (accountability fr annual report); (2) wide-ranging
reg. framework to govt’s enviro. policy-making process (casts a wider net – goals fall under mandate of MOE as
well as many other dpts); (3) primarily directed at enviro. policy (contains little guidance as to connection b/w
enviro. & economics)
 Limitation: (1) silence as to both specific goals for econ. policy & mechanisms to ensure integration of
enviro/econ. objectives; (2) [deeper lmt]: failure to address how enviro. goals best selected/implemented to
ensure econ. prosperity
Implementation of EGSPA:
Performance in Meeting EGSPA’s 21 Specific Enviro. Goals:
o Evidence that EGSPA more successful in implementing enviro. policy goals than non-leg. frameworks;
matters that rooted in leg., makes actions on policy commitments obligatory
 suggests putting agenda into law can keep it at forefront
Performance in Integrating Enviro. & Econ. Policymaking
o Implementation limited to achievement of 21 enviro. goals
o Broad framework (integration of enviro. & econ.) not fully embraced by either govt that initiated
EGSPA or one that’s overseen its implementation
o Not easy to achieve integration b/w branches of policy allocated to diff. govt dpts
o No institutional apparatus for making integration in Act  has to be much more specific on what
integration means and reqs
Improving Reg. of Govt’l Policy Perf. at the Interface of Enviro’l & Econ. Governance:
o Integration can occur in at least 2 ways: (1) though mechanisms chosen; (2) dvpt of additional goals
(econ. & integration goals)
o Consider & state short, med & long-term econ. goals b/c some ops to integrate enviro. & econ. come at
short-term econ. cost
Conclusions:
 1. Seems to have succeeded in improving perf. of NS govt in implementing enviro. policy commitments
 2. Not yet succeeded in transforming NS to achieving higher eniro. & econ. perf through integrated pursuit of
both goals  EGSPA must address its econ. objectives more rigorously
 results encouraging; functioned as meaningful counterweight to forces that could have easily
postponed/derailed goals
 Strengthened (but not transformed enviro. gov, in NS
22
An Overview of Cdn Reg. Models, pp 316-327
The Fisheries Act


“First generation” approach to enviro protection
Parliamentary review 2005 – 2012: environmentalists concerned not effectively complied w and enforced,
businesses think impedes enviro. resp. devpt through imposing costly burdens on businesses
Habitat Protection: Subsection 35(1)

Pre-2012: prohibition is “HADD”: harmful alteration, disruption or destruction” on fish habitat
o (2) Unless authorized by Minister/GIC; if you thought you were going to HADD, had to seek permission
(not ask for forgiveness later)  triggered Fed EA, which was supposed to inform Minister’s decision as
to whether you would be exempt (~nice loop there)
 Criticism fr BC Bus Council: proponents seek prior evaluation even if small proj, CEAA too easily triggered,
DFO’s overly expansive interpretation of HADD
1  called for changes that were incl. in Bill C-38 (2012 – also incl. repeal/replace of CEAA), incl. eliminating
EA trigger, provided more exceptions for when can create a HADD
2  even more sweeping changes coming up, limits serious harm to only fish used for human purposes
(fisheries), fish playing vital role in ecosystem not protected; harm must be dramatic (death); Minister/GIC can
designate projs to be exempt, doesn’t need to publish in Gazette (previously rare, limited to specific circumst)
Pollution Prevention: Section 36


Critics have said creates overbroad “zero tolerance” regime for marine pollution
“Deleterious substance” added to “any water” “degrade or alter” “quality of that water” “rendered deleterious to
fish or fish habitat”
o BCCA and ONCA interpreted as “any water”  zero tolerance conclusion
R. v. MacMillan Bloedel (Alberni) Ltd., 1979, BCCA (leave to SCC refused)
Issue
Meaning of s. 34(1) “deleterious
substance”
Reasoning, Seaton, JA:
Leg. intention clear (could have phrased less
strictly)
Provision seeks to exclude each part of process of
degradation
Prompt cleanup (was argued) only relevant to
sentence, not conviction
D arg: purpose of provision to
prevent waters fr becoming
deleterious, so plain meaning
interpretation absurd (req actual
waters to become deleterious as
Decision: Bunker oil spill fulfills reqts of
part of conviction)
conviction under Fisheries Act s. 36
Facts: Bunker C oil leaked during offloading of ship (valve wasn’t shut properly)
JH: Prov Ct: acquitted; CA: reversed acquittal; SCC: appeal refused
Notes
“Deleterious substance” +
deposit = offence under s. 36
of Fisheries Act (doesn’t
require that water becomes
deleterious)
Defence brought to
prosecutions under s. 36(3)
R. v. Kingston (City), 2004, Ont CA (leave refused to SCC)
Issue
Meaning of s.
34(1) “deleterious
substance”
Reasoning, Gillese, JA:
No stipulation in s. 36(a) that substance must be deleterious to
receiving water; but deleterious to “any water”
Notes
ONCA approves
BCCA’s interpretation in
R v MacMillan Bloedel
Decision: City of Kingston contravened s. 36 of Fisheries Act when
allowed ammonia to leak into River
Facts: City of Kingston ran municipal dump site on shore of river, became peninsula of garbage, then made recreation
area built on top, nothing done to address leakage of migration of toxic substances
JH: Citizen brought private prosecution and Minister brought charges
Ian Richler, “R. v. Kingston and the Criminalization of Harmless Pollution” Case Comment, 2005
Summary: argues s. 36(3) overbroad as interpreted by MacMillan and Kingston
Counterarguments:
1. R v Levesque found s 35(1) wasn’t overbroad  but it applied to real-world effects (harm to fish); s. 36(3) doesn’t
23
2. Uses hypotheticals  SCC said “reasonable hypotheticals” ok, ONCA said “1 tsp oil in ocean” could bring
conviction, zero tolerance is illogical
3. Prosecutors enough sense not to charge for trivial infractions  R v Smith said law cannot be saved by relying on
discretion of officials (esp the case when citizen’s can bring private prosecutions)
4. Too onerous for Crown to prove substance caused harm  should be onerous to prove
5. Law necessary to deter pollution  overbroad law will not deter harmful pollution, may breed disrespect for law
6. Enough safe-guards for accused  imprisonment only available on second conviction, defence of due diligence
possible, but just b/c offence isn’t as draconian as could be, doesn’t mean it isn’t
7. Cts shouldn’t second-guess Parl  assumes CA interpretation is what Parl intended
8. Must catch substances that seem innocuous on their own, but are harmful cumulatively  doesn’t extend to all
types of substances, irrational to adopt zero tolerance policy towards all other substances
Solution: draw distinction b/w “inherently toxic” substances and all others; sensible b/c refocuses provision on receiving
water, provides clear nexus b/w prohibition + objective.
Tollefson comments:
 Both provisions give govt v. strong reg. tool (even after amendments to s. 35); remain most important enviro law in Cda
 Bill C-38 creating much confusion/uncertainty, and business doesn’t like uncertainty… so not sure why govt is doing this
The Cdn Enviro. Protection Act (CEPA), pp 327-341
Adapted from M. Doelle, CEPA and Commentary, 2008






1988, CEPA was first serious attempt to provide coordinated response to growing enviro concerns (12 part law)
Toxic Substances List: classification, id’n, reg’n, thousands chemicals currently used
o dvpt slow in early yrs, accelerated recently
Used to implement international commitments (i.e. Mtl Protocol, London Convention, Basel Convention)
Public participation plays key role: “action forcing” provision allows public to trigger investigation into
violations, commence enviro protection in own right when Minister failed, commence action for damages
resulting from loss arising fr violations
o No such actions brought to-date
“Heart and soul of CEPA”: Part 5 controls toxic substances (fed jurisdiction confirmed under crim law power,
Hydro-Quebec)
o Procedure for reg. substance:
 Stage 1: classify substance as toxic
 Stage 2: id means by which manage, reduce, eliminate
o All substances must be listed on:
 Domestic Substances List: 23,000 substances used in Canada at enactment of CEPA,
“grandfathered” in (not moved to Toxic list til reviewed)
 Priority Substances List: priority for listing due to potential for toxicity
 Toxic Substances List: to be controlled/eliminated
 Ministers Health & Enviro have 2 yrs to pass Regs controlling import (i.e.
PCB’s)
 Unregulated: confirmation they should remain unreg. on Domestic Substances List
 Non-Domestic Substances List: prohibited fr import to Canada until approved under CEPA
(through procedure above)
Part 4 National Pollutants Release Inventory (NPRI):
o Intended to “daylight” info about pollutants that is in possession of Fed govt; considerable ministerial
discretion as to what kind of info reported and in what circumstances
Great Lakes United v. Canada (Minister of Enviro.), 2009, FC
Issue
App arg: Failure defeats
purpose of CEPA (ensure
public transparency and
accountability in achieving
pollution reductions);
Failure breaches ss. 48 &
50 (are not set aside due to
Reasoning, Russell, J. (also on Con Orcas, threw out petitioner in Burns Bog case)
Use of word “may” in s. 46 isn’t wholly permissive, doesn’t mean Min. can choose which
info to put in, exempt specific industries (this interpretation would be difficult to reconcile
w purposes of CEPA)  it’s enabling provision that allows Min. wide powers to gather
info (must be exercised in way that meets obligations of govt of Cda)
May be dispute around what info imp. enough to incl. in NPRI, but here, no dispute arises
24
s. 46 discretion provision)
Evidence shows if Min. doesn’t already have info, it’s avail. to him  essentially turning
blind eye
App request remedies:
Declaration Min. in breach Re. availability of JR: D argues publishing info in Gazette under s. 46 discretionary decision
of CEPA; Min. must
in nature of policy action not subject to JR; in the alt, decision is leg. action, not subject to
publish relevant info
JR  Ct: s. 46 enabling provision, must be read in full context of CEPA; nothing in CEPA
through NPRI
gives Min. discretion to use s. 46 to exempt industries and forestall publication; here, Ct
(mandamus); Or,
concerned w Min.’s failure to carry out mandatory obligations imposed under other
Min.must make manifest to sections; failure to comply w stat reqt is error of law & subject to CSOR
public that he’s exempting
Decision: discretion under s. 46 cannot be used to abrogate obligations under ss. 48 & 50 of
Notes
CEPA; Minister misinterpreted ss. and failed to discharge these obligations.
Part 4 of CEPA important,
ministerial discretion
Remedy: declaration that Minister erred in interpreting CEPA; mandamus to Minister to
must be exercised
publish mining transfer pollutant release info through NPRI
judicially
Facts: Application for JR of Minister’s failure under CEPA to req reporting by mining facilities of releases/transfer of
waste to tailings areas; failure to publish data re. above to NPRI; 16 yrs consultations, all stakeholders agree mining
tailings are “transfer/release” and should be reported, but while impasse on how, nothing is reported (finding new system
doesn’t prevent it fr being reported in NPRI) (App want: NRPI, Industry/D want: separate system)
Intro to Compliance and Enforcement, pp 343-358
Joseph Castrilli, “Cdn Policy and Practice w Indicators of Effective Enviro. Enforcement”, 1999
Introduction:
 “Compliance”: state of conformity w the law
 “Enforcement”: activities that compel offenders to comply w their leg. reqts
Overview of Fed & Prov Roles in Compliance Measurement:
 FED: Key component of CEPA & Fisheries Act is that compliance is considered primarily in rtn to regs promulgated
 PROV: must be measured in rtn to approvals, permits, etc. (broad reg authority)  challenge for compliance measmt
 Diff. in place where compliance to be measured result in diff. methods (i.e. inspections, self-monitoring/reporting)
 confusing, fragmented, option for fed/prov agreements where provs ensure compliance w Fed reqts
Overview of Fed & Prov. Roles in Enforcement Measurement:
 FED: 1988 Enviro. Cda enforcement & compliance policy dvp’d w CEPA; enviro. standards typically C&C
prohibitions/regs (usually prosecuted in Cts like crim. offences)
 PROV: more multifaceted, incl. admin orders, tickets, cancelling permits, AMPs  allow to deal w less serious
before becoming serious
Correlating Compliance & Enforcement Outcomes w Enviro. Results:
 Even 100% compliance level doesn’t equate w 100% protection of enviro. (regs don’t consider every aspect of their
reg’t prod/industry)
Conclusions:
 Compliance & enforcement indicators may be: (1) outputs, (2) outcomes, (3) improvements in enviro. quality (as
move fr #1 – 3, govt efforts appear more fragmentary  shows where govt effort should be devoted in future
o Diff. to correlate compliance & enforcement outcomes w enviro. results
o Outomes should incl. reporting  more systematic approach needed
[Reg. Enforcement: the Cdn Record]
Jerry V. DeMarco & Toby Vigod, “Smarter Reg.: The Case for Enforcement & Transparency” (2007)
History:
 Mid 20th c: shift fr CL to address enviro. initiatives  govt intervention; also saw shift fr focus on private rights b/w
parties  public law
 However, reg. activity didn’t mean regs aggressively enforced
 ONT 70’s-80’s: shift to admin tools such as permits to ensure compliance (but fines criticized as being too low)
 Late 80’s – early 90’s: inc. reg. activism & enviro. concern (Fed & some Provs like ON)
o Change of focus: inc. emphasis on prosecution



25
1992: UN Conference on the Enviro & Dvpt (Rio Earth Summit) high point for public concern
90’s: considerable backlash against reg. activity & aggressive enforcement
PM Mulroney quote: “pink slips and running shoes” for bureaucrats began politicians running on anti-govt platforms
& the deregulation mvt
 shift in emphasis to more voluntary approaches (esp. in jurisdictions where govt elected on fiscal restraint
platform); i.e. Ontario, but growing public concern re. failure of regulators to reg properly
Conclusion:
 Obviously not every prob. can be solved by reg., sometimes education or incentives work better
 However, certain areas have risk of opportunistic behaviour by bad actors (i.e. water pollution), so a strong
enforcement regime should be in place
 enforcement measures should be strong enough to ensure pollution doesn’t pay (implement polluter pays
principle)
Ecojustice Cda, “Enviro. Enfrocement by Cda’s Fed. Govt (The Essentials), 2011
Summary: highlights of “Getting Tough on Enviro. Crime” report
Main issues:
 Chronic under enforcement (i.e. # inspections, charges, convictions under Fisheries Act declined)
 Many warnings, few prosecutions or convictions (warnings most frequent tool used under CEPA/Fisheries;
numbers on pp. 349-350)
 Low Fines do little to dissuade (esp. large industrial actors)
 Hodgepodge of incomplete data (gathered using inconsistent methods)
 Or no data at all (i.e. Cda Wildlife Act, Cda Shipping Act no legal obligations to report enforcement activity)
 Making the public wait for info (public release of annual reports has been chronically late)
 What enforcement is happening near you? (limited info id’g enviro. offenders)
Conclusion: Cdns should be concerned; likely to be exacerbated w Enviro. Cda job cuts (2011)
Office of the Auditor General of Cda, 2011 Report of the Commissioner of Enviro. & Sustainable Dvpt,
1999
Summary: chapter on enforcing CEPA
 Enviro. Cda has dvp’d policy to ensure enforcement officers apply CEPA in fair, predictable, consistent manner
 Inadequate info re. whom CEPA is regulating, and which regulates pose greatest threats (w/out this, can’t be sure
Enforcement Plan targeting highest risks to human health & enviro.)
 Dpt doesn’t know extent to which enforcement is improving compliance or min. enviro. damage
[Cooperative vs. Adversarial Enforcement Approaches]
Both “sticks” and “carrots” can be useful, but beyond this, views diverge…
Matthew D. Zinn, “Policing Enviro. Reg. Enforcement: Cooperation, Capture & Citizen Suits”, 2002
3 types regulated firms:
1. Amoral calculators
2. Political citizen
3. Incompetent
 tit for tat strategy, except in compelling circumstances, i.e. violation is intentional, or severe health/enviro. damage
Adversarial enforcement:
Pros:
 Emphasizes imp. of general & specific deterrence (discourages D’s & reg’t entities at large fr violating law)
 Formal, publicly visible enforcement actions validate compliance decisions of voluntary compliers
 Penalties express public disapprobation of polluting activity
 Imposing penalties for “ill-gotten gains” prevents unjust enrichment
Cons:
 Only caters to “amoral calculator”
Cooperative enforcement:
Pros:
 Improves ongoing rship of regulator/regulatee  reduces costs of friction that would otherwise occur




26
Reduce costs of individual enforcements in short-term (i.e. notice, evidence, prosecute, etc.)
Mitigates perceived irrationality and unfairness of one-size-fits-all regimes (can be over inclusive)  boosts
Agency’s credibility w firms  may lead to shoring up public support too
Greater flexibility may inc. investment in enviro. beneficial techs (by not applying economically unreasonable rules
to a firm that won’t produce enviro. benefit, they may invest in actual enviro. beneficial process improvement)
May allow “trades” (agency accepts under-compliance in one area for over-compliance in another – if more econ.
feasible for co. & more enviro. beneficial in long run)
Cons:




Insufficiently punitive & certain (violators face min. material incentives to avoid noncompliance)
Agreements negotiated “under the table” means ethical message that polluting is wrong isn’t delivered
Amoral calculators can feign or withhold compliance
Cooperative approach places great faith in agency’s & enforcers’ ability to recognize & rep. public interests (officer
likely has less info about public costs of pollution, no broad public input or time to reflect on this)
 Considerable resources to monitoring to learn of regulatee’s compliance status (even though long-term savings)
Conclusion:
 Neither strategy completely satisfactory; agency’s enforcement tactics should depend heavily on particular violator
involved & agency’s past dealings w it  “cooperate w cooperators and punish evaders” (p. 356)
 Response of regulated firms to the same enforcement tool will be v. different
o Scholz: reglator/regulatee playing ongoing game of “prisoner’s dilemma”  tit for tat approach (regulatee
cooperated, agency should; regulatee “defects”, agency punish until regulatee starts to cooperate again)
o Agency should shift firm from “political citizen” to “amoral calculator” as needed & treat accordingly
(severity of sanctions and speed of imposition)
 In cooperative approach, agency must broadcast its enforcement strategy  secure legitimacy gains; formalize
strategy into policy document to inc. certainty among firms (& explain why firms will be treated differently)
Selected Issues in Enviro. Law Enforcement, pp 358-398
[The Role of the Crim. Law as an Enforcement Tool]
Many cases, prosecutors have option of proceeding by way of CCC:
 CCC doesn’t contain any specific enviro. offences, so must be framed as “crim. neg.” (219) or “nuisance” (180)
Also option under applicable fed (CEPA/ Fisheries Act) or prov. regs
Stanley David Berger, “The Future of Enviro. Prosecution in Ont” (2006)


CCC = “big stick” when major enviro. event
o Crown proceeds summarily, max. fine against corps is $100k, individuals is $2k
o Crown bears added burden of proving neg. (reg. prosecutions = burden assumed by D)
o In case of neg., must show “marked & substantial departure fr standard of RP” (more exacting standard)
o 2 reasons for going w Crim: (1) stigma associated w crim. prosecution, (2) detailed & time-consuming, & if
proceed by indictment, no limitation period (vs. 2-yr limitation periods for laying reg. charges)
2004 amendments to CCC (Bill C-45):
o Dispense w Identification theory of crim. liability (crim. charges only laid if find “directing mind” of
corp)
o Post-Westray Mining disaster, now allowed prosecutions against management (for acts/omissions); work
that was alleged to amount to crime directed/negligently supervised by one of Sr. officers
 created pos. legal duty on management to prevent bodily harm fr supervised work
Many provs have parallel reg. provisions that empower cts to impose multi-mil $ fines & up to 5 yrs jail
[The Role and Nature of the Reg. Offence]
Key concern: what evidence of “fault” must be est’d, who bears burden?
Cts must balance: prosecutorial efficienty vs. protection of public/fairness to the accused
John Swaigen, “Absolute Liability Revisited: Levis v. Tetrault”, 2006
Dvpt of Absolute & Strict Liability Offences:
 Beginning 19th c: accepted view that MR was principle of NJ  no one could be convicted of crime w/out MR
 Yet, reg. offences often unintentional, so exception to general rule of MR

27
Sault St. Marie created 3 categories offences:
o True crimes (proof beyond reasonable doubt)
o Strict Liability (AR beyond reasonable doubt & defence of reasonable care, on BoP, allowed)
o Absolute Liability (no evidence of fault reqd – no MR or negligence)
 Presumption that reg. offence falls into middle category (SL) unless Leg. has made clear otherwise
Note: post-Sault St. Marie, most reg. offences fall into SL category, esp. vehicle offences (even more clear w Ref. MVA)
Levis (Ville) v. Tetreault, 2006, SCC
Issue
SL or AL
for reg.
offences?
Reasoning, LeBel, J.
Classifying offence into 1 of 3 categories q of SI; quotes Dickson, J.
in Sault St. Marie to affirm reg. offences should generally be in
middle/SL category (AL should be exception req’g clear proof of
LI)
Facts: charged w reg. offence
Notes
Ct reaffirms approach it adopted in
Sault St. Marie (re. SL for reg.
offences) – some q’s after R v. Pontes
(w est’d AL)
[The Prosecution & Defence of Enviro. Charges: Corporate Reg. Liability]
R. v. Syncrude Canada Ltd., 2010, Alta. Prov. Ct
Issue
Did co. do
enough to
deter birds fr
landing (due
diligence)?
Notes
One of highest
profile enviro.
prosecutions
in Cda in
recent yrs
Reasoning, Tjosvold, J.
Reg. offences = prima facie SL (Sault St. Marie); Crown proves AR beyond reasonable doubt, D est’s
reasonable care on BoP +
Co. raised more defences (once “air of reality”, Crown must disprove beyond reasonable doubt):
Due diligence (took all reasonable steps to avoid event); could co. not reasonably have foreseen
contravention of statutes?  Ct: “not reqd to achieve standard of perfection”, assessed against conduct
of RP in similar circumstances (list of factors on p. 368)  RP would have foreseen hazards to
waterfowl, co. did not est. proper system to ensure wildlife would not be contaminated
Ct: no Mistake of Fact (co. could reasonably have foreseen events would occur)
Impossibility: co: “could not ensure waterfowl wouldn’t be contaminated”  Ct: could not ensure,
but had reasonable legal alternative
Act of God: co: adverse weather  Ct: reasonable precautions weren’t taken
Abuse of Process: co: complied w all approvals  Ct: co’s directing mind & will should have det’d
it was taking all reasonable steps, not just rely on fact it’s received approvals; also, prosecution has
discretion, Cts rarely interfere (unless malicious)
Officially Induced Error: Ct: co. didn’t make out the test
De minimus: Ct: this is “not at all trivial”
Decision: guilty (under both statutes)
Facts: waterfowl trapped in bitumen on surface of Settling Basin; co. had used effigies & canons as deterrents (can be
effective), but adverse weather affected things too
JH: co. charged under AB’s Enviro. Protection & Enhancement Act & Cda’s Migratory Birds Convention Act
Shaun Flaker, “R. v. Syncrude Canada: A Clash of Bitumen and Birds”, 2011
Summary: focuses on fact that co. was prosecuted for activity that had reg. approval of AB govt, implications this has on tar
sands industry & migratory bird habitat in AB
Introduction:
 Co’s deterrence system not effective in conditions; member of Sierra Club began private prosecution (under
Migratory Birds Convention Act); Crown took control, and Fed/AB govts laid charges too
The Aurora Mine:
 Syncrude acquired leases to dvp Aurora Mine in AB; completed EIS, indicated 81 waterfowl frequent area, Enviro.
Cda reco’d taking certain measures, incl. using the BAT  Syncrude insisted they would
 AB & Fed govts approve tarsands projs on case-by-case basis w faith in industry that proj-specific & CE impacts
well-understood & will be mitigated
 Evidence at Syncrude trial indicate 3 – 10% of bitumen isn’t captured in extraction process  tailing ponds are
enviro. liability
28
The Offences:
 Migratory Birds Convention Act, s. 5.1: depositing substances harmful to migratory birds in Aurora tailings pond
 Alb EPEA, s. 155: failing to keep or store hazardous substances in manner ensure it doesn’t come into contact w
birds
o Syncrude arg: doesn’t apply when birds fly to it (would defeat stated purposes of EPEA)
Due Diligence:
 Syncrude attempted to est. on BoP it took all reasonable steps to avoid action leading to offence
 Fed Crown confirmed due diligence defence not avail. for MBCA b/c purpose of tailings ponds is to store bitumen
toxins
 however, Fed Crown said should Syncrude est. due diligence for EPEA, they would drop charges under MBCA
(imp. to judge re. arg of Abuse of Process)
Abuse of Process:
 Sycrude arg’d sanction for death of birds must come fr not complying w conditions fo reg. licensees to operate
talings pond
 Ct: this doctrine used sparingly by Cts for respect of separation of powers b/w judiciary & exec.  in any event,
Syncrude didn’t come to Ct w clean hands
Energy Dvpt vs. Habitat Protection:
 Message fr case is: don’t need to eliminate adverse enviro. affects, but must take reasonable measures to prevent
 Pay special attention to bird deterrence
 Literal reading of MBCA s. 51 = no due diligence for operating tailings pond, but one has been read in by Enviro.
Cda (and judge indicated that w/out that, may have been abuse of process)  likely other s. 5.1 prosecutions don’t
get to trial b/c accused pleads guilty in face of evidence
[Directors’ and Officers’ Liability]
80’s-90’s: Cda broadened ambit of legal liability for corp. directions & officers for corp. wrong-doings in enviro. context &
beyond
R. v. Bata Industries Ltd., 1992, Ont. Prov. Div.
Issue
Clarify legal
standard by which
corporate officers
and directors may
be held liable
Charges against
directors: (1) onsite/GM; (2) Prez;
(3) CEO
Reasoning, Ormiston, J:
Factors to consider:
 Individual’s authority to control
 Holds the position of officer or director
 Distribution of power within corp.
 Corporate hierarchy
 Percentage of shares owned
 Responsibility undertaken for waste disposal practices
 Test boils down to corp. & societal resp:
1. As power grows, increased control over how waste is disposed
2. As stake in corp grows, more potential to benefit from less expensive waste
disposal practices
Notes
Liability for
Directors of
Officers who
may be found
liable
Decision: (1) GM guilty (resp. to personally inspect); (2) Pres guilty (can’t just
give instructions, must ensure they’re carried out); (3) CEO not guilty (wasn’t
aware, but not willfully blind either)
Facts: series of charges under Ont’s Water Resource Act and EPA, charged as directors with failing to take all
reasonable care to prevent a discharge contrary to the OWRA and the EPA
Notes on fines: Trial judge: $120k Bata, $12k on GM/Pres (no indemnification); Sentencing appeal: $90k Bata, $6k GM/Pres
(indemnification aff’d); ONCA: reduced fines aff’d (indemnification removed)
29
[Sentencing in Enviro. Cases]
R. v. United Keno Hill Mines Ltd., 1980, Y.T. Terr. Ct.
Issue
Are there unique
considerations for
sentencing enviro
offences?  YES
Are there
sentencing
principles peculiar
to sentencing a
corp. vs. an
individual?  YES
Notes
Principles of
sentencing enviro.
harm cases w corp.
accused
Reasoning, Stuart, CJ:
Considerations for enviro. damage:
 Should vary the severity of punishment in accord with the nature of the environment
affected and extent of damage
 1. Nature of the Environment—unique, ecological area? High-use watershed?
 2. Extent of Injury—irreparable, extensive, persistent?
 3. The Offender—Corporations—size, wealth, nature of operations
Considerations for corp. offenders in enviro. cases:
1. Criminality of the Conduct—related to degree of criminality
2. Extent of Attempts to Comply—diligence?
3. Remorse—actions speak clearer
4. Size of Corp—size and wealth, larger fine
5. Profits Realized from Offence
6. Criminal Record
Evaluation of Sentencing Tools:
 Courts traditionally rely on fines
 But fines alone will not mould behaviour, need a greater spectrum of sentencing options
Limitations of
 Usually fines can be passed on in higher prices
prosecution that
 Sentencing to be more effective must reach the guiding mind—corporate managers
solely target a corp.
 Upper echelon of officials should first prove existence of a reasonable system of control
accused (new tools
before liability can be passed to a subordinate
needed for
o They are in best position to protect public interest
behaviour mod)
o Subordinate may deny liability if the matter is either outside actual authority or
not a consequence of his lack of reasonable care
“A corporate veil should never afford the slightest measure of special protection to anyone for
criminal conduct” (p. 390)
Facts: pled guilty to depositing waste in Yukon waters
Elaine L. Hughes & Larry A. Reynolds, “Creative Sentencing and Enviro. Protection”, 2008
Summary: discussion of alternate sentencing tools
History:
 Early pollution tools carried fine  routine enforcement/compliance rarely achieved, hid behind corp. veil,
insolvency caused issues
 Late 1980s: improvements to sentencing in quasi-crim realm:
1. Higher max. fines, daily offence provisions, profit-stripping fines
2. Creative options (or “non-fine measures”) added to statutes (see list below)
3. (more recently) Diversion processes (restorative justice, conditional discharges)
 Fines are still most frequently used, but lack of rigorous enforcement prob, fines have been low (due to lack of
familiarity w reg. regimes by judges, lack of prosecutorial expertise and resources)
Existing leg: Creative Sentencing Options (pp. 392-394)
(a) Removing Benefits
(b) Restitution as Compensation
(c) License Revocations and Prohibition Orders
(d) Trust Funds, Research Orders and the EDF
(e) Remedial & Prevention Orders
(f) Community Service Orders
(g) Notification, Publication and Info Orders
(h) Performance Bonds or Guarantees
(i) Suspended Sentences & “Probation”
(j) Ticketing & Diversion Processes (different from Creative Sentencing as don’t result in conviction: (1)
ticketing, (2) absolute/condition discharges, (3) EPAMs)
Application of Current Leg: Process & Policies:
30

What outcomes are being achieved? Fed. enforcement relies on prosecutorial discretion (1) directing sentence to
local where offence took place, (2) ensuring logical nexus b/w nature of offence and sentence, (3) directly involve
the offender (in negotiating w Crown too)
Assessment & Future Directions:
 Main goal to achieve compliance w enviro. statutes through specific/general deterrence measures
 Largest group of orders: order to conduct specific enviro. projects  arguable specific deterrence benefit
 Creative sentencing moving beyond traditional sentencing objectives by providing direct enviro. benefit
 Enviro. as ‘victim’, has parallels w victim’s rights objectives
 Enviro. realm, unclear that restorative techniques will be of particular interest due at least in part to deep distrust of
industry that enviro. reps maintain (wouldn’t have volunteer community reqd to engage in restorative justice)
 note: these are using existing stat. and CL concepts, incrementally building on case-by-case basis… is this
enough? either way, it’s a pos. step fwd
The Emerging Role of Admin Monetary Penalties (AMPs), pp 398-400
Crim/Reg prosecutions can be time-consuming, expensive & unpredictable… so dvp’d alt. enforcement mechanisms
Stepan Wood & Lynn Johannson, “Six Principles for Smart Reg.”, 2008
Summary: AMPs
 AMPs: modest financial penalties for minor enviro. violations w/out incurring the time & expense of a full-blown
investigation, prosecution and trial
 Lead us away fr all-or-nothing approach (crim prosecution or nothing), which led to many violations not being
investigated/prosecuted at all
 Research shows credible deterrent effect (at modest admin cost)
 Concerns: absolute liability, double jeopardy (being prosecuted too), lack of judicial scrutiny, high level of admin
discretion, one-size-fits-all approach
 Even some ENGO’s concerned, as see as trivializing what should properly be considered crimes
 US EPA’s favourite enforcement tool, gaining popularity
Note: Cda enacted Enviro. Violations Administrative Monetary Penalties Act (MPA) in 2010, but none of the Regs needed to
give it practical effect have been enacted.
Food Inspection Agency’s use of AMPs has seen industry compliance rise fr 60-60% to over 90%
Certainty of punishment is most significant single factor in promoting compliance
Commentators warn certain offences must stay in crim. ct system (“true crimes”)  reco. 2-track system that lists offences
for which crim. prosecution is only option.
 future challenges under the Charter?
Citizen Enforcement, pp 414-427
o
o
US: has “citizen suit” provisions that provide citizens with standing to bring enforcement actions as a “private
attorney general” (& indemnified for costs of action, if successful)
 Canada: reluctant to follow suit (SARA has no citizen provisions despite enviro. groups’ lobbying)
o However, some laws have provisions allowing citizens to trigger an investigation or in rare cases bring
private prosecutions, though have been circumscribed in application
o Principal means for citizens to prosecute enviro. offences remains in private prosecutions  in Ont, been
successful, but BC/AB govt policies effectively precluded application
[Citizen Suits & Enviro. Bills of Rights]
Cdn Enviro. groups proposed Enviro. Bill of Rights, like in U.S.
Even more prevalent in US is Citizens’ Suits
C. Tollefson, et al, “Towards a Costs Jurisprudence in Public Interest Litigation”, 2004

US “private Attorney General” model as primary instrument to ensure fed law compliance
o If judgment for Pl, courts can order reimbursed for litigation costs incl. reasonable lawyer fees
 If counsel acting pro bono, get what lawyer fees at private firm would be
o Key feature: ONE WAY costs rule (known as fee-shifting) – reward if you succeed, no penalty if you fail
(allows suits to be brought w/out fear)
31



o Citizen suits have been hailed as “a defining theme of the modern enviro. era” (p. 416)
CEPA
o Contemplates right of citizen to bring enviro protection action – but constrained + never used
Ont Enviro. Bill of Rights – used rarely
Lack of citizen-led Private Prosecutions here – reasons?
o In Cda, must establish guilt beyond reasonable doubt vs. U.S. civil standard for citizen suits
o More daunting legal and scientific challenges
o Also, some jurisdictions’ policies for AG to assume conduct of all such cases  prosecutions stayed
[Private Prosecutions]
K. Ferguson, “Challenging the Intervention & Stay of an Enviro. Private Prosecution”. 2004






Has been a gradual erosion of private prosecutorial authority since industrial revolution (shifting society values,
centralized bureaucracy)
Important role private prosecutions can play:
o Cure to overworked bureaucracy
o Important safeguard against corruption in Crown prosecution decisions
o Avoiding laws being rendered paper tigers due to govt non-enforcement
o Reassurance to those who comply with law that their competitors will not benefit from non-compliance
o Important civil liberty in a participatory democracy
 despite benefits, once private prosecution is brought, AG often intervenes and stays it (i.e. Alberta)
o Can JR it, but Cts usually afford lots of deference to AG
Rationale for limiting reviews of AG decisions to stay: protection of rights of accused, public interests
Balance must be struck for PI b/w zealousness error (improper, malicious PP) and leniency error (underenforcement)
o However, zealous error easily dealt w by Crown providing reasonable justification for intervening & if it
continues as an issue, punitive costs award seem the obvious solution
Law Reform Commission for Canada: “individuals, frustrated by the law, may seek to accommodate themselves
by unlawful means” (citizen’s resort to legal processes clearly preferable to unregulated forms of citizen self-help)
 Cts counter this w AG being accountable to the Leg. & electorate. BUT most decisions of the AG are invisible,
may dramatically affect accused BUT have a negligible impact on voting public
The Legislature is an ineffective oversight mechanism, esp. when those who benefit fr AG’ exercise of discretion are
the leaders of the current govt.
Kostuch v. Alberta (AG), 1995, Alta. CA (leave refused to SCC)
Issue
Appeal fr dismissal of
application to set aside
stay of proceedings:
1. Does AG’s decision
to intervene in her PP
constitute a violation of
Charter s. 7?
Ratio
Re #1: life, liberty, security doesn’t protect right to prosecute another person
(however broadly you construe this)  PI considerations important too;
AG answerable to Leg & electorate – Cts don’t want to intervene AG’s
discretion
 “the right, if any, of a PP to prosecute another person is very limited and
is clearly restricted by the provisions of the CCC to cases where the AG opts
not to intervene”
Re #2: power to review prosecutorial discretion will only be exercised where
there has been FLAGRANT IMPROPRIETY in the exercise of the discretion
 est’d by proof of misconduct bordering on corruption, violation of
the law, bias against or for a particular individual or offence
Notes
Leading
appellate
decision in
area of
Private
Prosecutions
2. Are Ct’s intervention
into prosecutorial
discretion by AG
limited to cases of
Re. constitutionality of Alb enforcing Fisheries Act  Ct has no concerns
flagrant impropriety?
Backround: App brought private prosecution re. ss. 35(1) & 40(b) of Fisheries Act re. construction of Oldman River dam;
AG intervened, RCMP investigated, AG followed 2-step policy (re. likelihood of conviction and PI req’g prosecution) &
proceedings stayed; App applied to have stay set aside  dismissed; this is an appeal fr that dismissal
32
JR of Environmental Decision-Making
Admin D/Making & Judicial Review in the Enviro. Law Context, pp 429-437






Admin law governs rship b/w citizens & state (“intimately connected w ROL”, as per Dunsmuir)
All state actors derive power to act fr statute (statutory d/makers)
Admin law governs far-reaching range of state actions, incl. specific decisions & making regs
Power to make regs. typically vested in Min. vs. power to issue license, etc. vested in civil servant
Most statutes provide for internal process of appeal
All d/makers must comply w legally mandated procedures (fr statute), but also CL PF (Baker factors)  usually reqs
notice & comment
M. Haddock, “Enviro. Tribunals in BC”, 2011
Introduction:
 Some jurisdictions have specialized enviro. cts (w dedicated judiciary), some have tribunals like in Cda (w some
having a “green bench” of judges dedicated to hearing enviro. cases)
Reasons for est’g enviro. courts and tribunals:
1. Efficiency
2. Economy
3. Expertise
4. Uniformity: also discourages “forum shopping”
5. Access to Justice: open, identified forum
6. Case processing
7. Commitment: visible court system symbolic of commitment to protecting enviro.
8. Problem-solving: (as opposed to strict legalistic adjudication) ADR, hybrid civil-crim prosecutions
9. Public participation: more open standing
10. Public confidence: transparent, effective, expert decisional body
11. Accountability
12. Prevent marginalization: so enviro. cases won’t be pushed aside in favour of less complex cases
Participant funding & costs:
 Significant challenge; legal aid typically underfunded and only avail. for crim law
 “Costs after the fact of participation” (BCUC, Ont. ERT) still may limit ability to participate fully (w expert
evidence) b/c of “gamble” that costs will not be awarded ultimately
Tribunal Powers & Procedures
Investigative/Inquiry Powers
 Purely adjudicative boards, like Cts, only consider evidence before them
 Adjudicative tribunals typically have more relaxed evidentiary rules than Cts; investigative powers act as
fact-finding
Experts
 Common that citizen appellant can’t refute D expert b/c they’re not qualified to provide opinion evidence &
don’t have enough $ to pay expert
 Ways to mitigate “hired gun” syndrome: all parties agree to 1 expert, court-appointed experts, expert panels
(neutral)
ADR
 Voluntary or tribunal’s effort to promote/prod parties into coming to resolution
Decision Deadlines
Enviro. Courts
 Sweden, NZ, Aus
JR Background & Overview, pp 437-441



Ultimate resp. for supervising admin action lies w Sup Cts  JR
Rigour w which cts review admin action (either reg. making or delegated d/making) det’d on sliding scale of
judicial deference called Standard of Review  key factor in det’g deference is legislative intent (~privative
clause)
No deference when agency goes outside its powers/stat. jurisdiction (action is ultra vires)



33
D/makers under fed. jurisdiction (CEPA, Fisheries Act, SARA)  FC (subject to Federal Courts Act)
D/makers under prov. statute  Prov. Sup Cts
Grounds for JR:
1. Substantive ultra vires *Cts will be receptive to these args of exceeding juridction
2. Failed to consider relevant info
3. Fettered stat. discretion
4. Unlawfully delegated stat. d/making power
5. Bias
6. Bad faith
7. Breach of PF
8. Errors of law/fact *Cts will be receptive to args raising pure q’s of law (subject to CSOR)
 Granting of remedy discretionary; depends on coming w “clean hands” and appropriateness of remedy (will it
make a difference?)
o i.e. certiorari, mandamus, prohibition, declaratory relief
o also, interim injunction (in enviro. context, this is v. difficult)
 Process = file by way of petition + some evidentiary basis in form of affidavit
Tollefson: “much more of an art than a science” (can craft evidence & characterize case that creates sympathy from Ct)  at
end of the day, you’re appealing to Ct to uphold ROL
 Often, public interest litigant arg ROL & govt arg deference (& that public officials should be accountable in public
venue of voting, rather than in ct room)
Georgia Straight Alliance v. Canada (Minister of Fisheries & Oceans), 2012, FCA *Consolidated Orcas
Outlines historical/constitutional foundations of JR
 Role of judicial review in defining the rship b/w democracy (Parliamentary sovereignty) and ROL
 Bill of Rights of 1689: consecrated principle of Parl. sovereignty
 Act of Settlement of 1701: recognized independence of judiciary
 Early 20th c: expanded state intervention, intricate leg. schemes, much delegation  incl. PC’s to protect admin
bodies fr interference by Cts
o However, Cts have always maintained right (sometimes limited) to control admin decisions (on ROL
grounds)
Standard of Review: Dunsmuir & the Enviro. Caselaw, pp 441-454
New Brunswick (Board of Mgt) v. Dunsmuir (2008, SCC)

SCC attempts to answer “threshold q” of how much deference to afford admin d/maker (Standard of Review)
Intro (p. 439): All exercises of public authority must find source in law; JR goal det’g agents don’t overstep legal
authority  JR function ensure “legality, reasonableness, & fairness” of admin process & outcomes
JR connected w not only upholding ROL, but of maintaining legislative supremacy & avoiding undue interference w
discharging admin functions (ROL: b/c Cts have last word on jurisdiction; Leg. supremacy: det’g SOR accomplished by
est’g leg. intent)
 Leg. can’t remove Ct’s power to JR; even privative clause isn’t determinative in that respect (inherent power of Sup
Cts to review admin actions comes fr. Constitution Act 1867, ss. 96-191)
Standard of Review:
Prior to Dunsmuir:
3 SORs (correctness/no deference  reasonableness simpliciter  patent unreasonableness/most deference)
Dunsmuir: collapses two reasonableness standards into one, so 2 standards now (correctness & reasonableness)
REASONABLENESS:
 Deferential standard
 Certain q’s before admin tribunals don’t lend themselves to specific, particular result  number of possible,
reasonable conclusions
 Concerned mostly w existence of justification, transparency, intelligibility w/in d/making process; also w whether
decision falls w/in range of possible, acceptable outcomes which are defensible in respect of facts & law
CORRECTNESS:
34
 Jurisdictional & other q’s of law
 Cts undertake own analysis of q; sub its own view & provide correct answer
Process of JR has 2 steps:
1. Has jurisprudence already det’d satisfactory manner the degree of deference req’d for particular category of q?
2. If not, Ct must analyze # factors to id proper SOR:
1. Presence of privative clause
2. Purpose of tribunal
3. Nature of q at issue
4. Expertise of tribunal
Note: “exhaustive review is not req’d in every case to det. the proper standard of review” [para. 57], some may be
determinative in some cases; CONTEXTUAL review
[Standard of Review in the Enviro. Law Context]


SOR is huge battle in public interest litigation
May have to concede RSOR to some parts of arg, but want CSOR for anything that looks like q of law/
jurisdiction
Georgia Straight Alliance v. Canada (Minister of Fisheries & Oceans), 2012, FCA *Consolidated Orcas
Issue
Reasoning/Ratio
Does Parl. intend to
Minister arg: Dunsmuir states admin d/makers should be provided deference when interpreting
shield Min.’s
enabling (“home”) statutes  Ct: Yes, Dunsmuir says this in context of expert, adjudicative
interpretation of SARA
tribunal in context of adversarial process though… said “adjudicators presumed to hold
& Fisheries Act fr JR on expertise in interpreting leg. that gives them their mandate” [para 68]; what Min. is asking is to
a CSOR? (at issue:
expand Dunsmuir framework to incl. all admin d/makers (not what SCC meant)  Dunsmuir
“legally protected by
doesn’t set out the SOR of Min. decisions
provisions in, or
Dunsmuir interpreted since as the following:
measures under, this or
Correctness: constitutional issue, q of “general law” both central importance to legal system &
any other Act of Parl”)
outside adjudicator’s area of expertise, true q of jurisdiction
Notes
Reasonableness: issues of fact, interpretation of tribunal’s “home” statute, or statutes closely
Threshold q of which
connected to its function
SOR to apply in context
of Min. decision under
Applies Dunsmuir threshold q:
SARA (draws bright
1. Previous cases det’d SOR for type of fact situation?  NO
2. Analyze factors:
line b/w Ministers &
1) Privative clause?  NO
expert adversarial
tribunals)
2) Purpose of tribunal  admin capacity, not adjudicative (Parl. didn’t set-up adjudicative
Whether/to what extent
body for SARA, so likely intended Cts to do it
for JR purposes should
3) Nature of q  purpose of s. 58 to ensure all habitat protected, describes what Min.
Ministerial decision be
“must” do (restricts Min.’s discretion)
treated as analogous to
4) Expertise of tribunal  Min. no expertise in interpreting statutes
expert adjudicative
Decision: Minister’s interpretation of s. 58 of SARA is reviewable on standard of correctness
tribunal decision
Facts: Resp. sought JR of “protection statement” of Minister of DFO, under s. 58(5) of SARA (stated Southern Resident
Orcas protected under Fisheries Act so no further steps needed to protect their habitat); comes down soon after Dunsmuir
Wier v. BC (Enviro Appeal Board), 2003, BCSC
Issue
What is the appropriate
SOR for EAB’s
interpretation of SprayTech’s application to
issuing permit under BC
Pesticide Control Act?
Notes
Reasoning/Ratio
“Pragmatic & functional approach” (pre-Dunsmuir): 4 factors to det. leg. intent (similar to 4
factors for det’g SOR in Dunsmuir step 2)
1. No privative clause, no stat. right of appeal  n/a
2. EAB’s erring in interpreting legal test = error of law  points to correctness
3. Purpose of statute polycentric  n/a
4. Pure q of law + potential to apply widely to many cases  points to correctness
 all 4 arms of test conclude EAB’s interpretation of legal test under Pesticide Control Act
35
Pre-Dunsmuir; involves
Board’s interpretation
of legal test
reviewable on standard of correctness
Decision: EAB erred in its interpretation of the legal implications of Spraytech decision
Facts: Petitioner sought JR of EAB’s decision that Spray-Tech (esp. precautionary principle) has no legal relevance to
issuing permit under BC Pesticide Control Act
Cdn Parks & Wilderness Society v. Canada (Minister of Cdn Heritage), 2003, FCA *CPAWS
Issue
What is the
SOR to apply
to Min.
compliance w
s. 8(2) of
NPA?
Notes
PreDunsmuir;
det’d
reasonablenes
s simpliciter
vs. PU
Reasoning/Ratio
Exercise of discretion involves polycentric interests:
a. Residents say will reduce isolation in winter
b. Difficult to quantify risks to wildlife/vegetation
c. Parl. has conferred on Minister broad resp. for admin, mgt, control of ntl parks (indicative of
leg. intent that SOR should be most deferential)
Political accountability effective check on abuse of power, in these circumstances, b/c:
a. Subject matter will register on political radar (cares about parks)
b. Action engages w public interest rather than individual
c. D/making transparent, part of public record
d. Finding of fact; when erroneous finding of fact made in perverse/ capricious manner w/out
regard for material before her = det’g if finding was patently unreasonable
Decision: decision that road proposal was incompatible w maintaining as first priority the ecological
integrity of Park reviewable on standard of patent unreasonabless
Facts: Minister approved road through a park, under Ntl Parks Act, which req ecological integrity be the 1st priority;
Counsel agreed SOR not correctness
Dene Tha’ First Nation v. Canada (Minister of Enviro.), 2006, FC
Issue
What is SOR for
analyzing alleged
breach of duty to
consult?
(involves timing
of when such
duty arose)
Notes
Pre-Dunsmuir;
duty to consult &
the appropriate
SOR
Reasoning/Ratio
Minister arg: reasonableness & applies “pragmatic & functional approach”  Ct: not helpful here,
that’s used for statutorily created tribunals  duty to consult no stat. basis besides Constitution
Quotes McLachlin in Haida Nation: Q’s of law, admin d/maker must generally be correct; Q’s of fact
or mixed fact/law, Ct may owe deference to d/maker
 Duty to consult is legal q in that it is legal duty; however, typically premised on analysis of
facts
 Follows that degree of deference may be appropriate (depends on nature of q and tribunal’s
expertise), SOR likely be reasonableness
“What is reqd not perfection, but reasonableness… the govt reqd to make reasonable efforts to inform
& consult. This suffices to discharge the duty” [para 62, Haida]
SOR Decision:
Existence of duty to consult and/or accommodate (incl. when it arose) = correctness
Content of duty (whether govt’s actions after duty arose complied w duty) = reasonableness
Facts: FN alleges Fed govt’s breached duty to consult in reg. and enviro review process for Mackenzie Gas Pipeline
(traversed through FN’s territory)
Grounds for JR, pp 455-468




When filing, you must enumerate grounds (convert your complaints into lexicon/terminology of admin law)
Ground 1: relied on irrelevant considerations, didn’t consider relevant considerations
Ground 2: fettered discretion (which can even lead to exiting jurisdiction – which always have to be reviewed on
CSOR)
Ground 3: Discrimination in exercise of d/making power or reg. making power
[Reliance on Irrelevant Consideration/Fettering Discretion]
Wimpey Western Ltd. v. Alberta (Dpt of the Enviro.], 1983 Alta CA
36
Issue
1. Whether Director could
take into acct Min’s policy
on not granting permits for
major facilities prior to
“long-term servicing
operation” being operational.
2. Whether Director
fettered/exceeded
jurisdiction by applying this
policy to appellant’s
application.
Notes
Argued impugned decision
defective due to reliance on
irrelevant considerations
Reasoning/Ratio
App claims: Director exceeded jurisdiction by taking into acct irrelevant considerations
1. Det. scope of Director’s discretion by looking an enabling statute (CWA)  “may issue
or refuse to issue” (no limitation on Director’s power to refuse to issue permit)
2. However, doesn’t mean discretion unfettered; can look to policy and objects of Act,
which is construed by looking at Act as a whole  purpose of CWA is means of
controlling/eliminating probs fr exploiting enviro. (Min. given far-reaching powers, and
policy in q is w/in scope of those powers)
 CWA does lay out factors to consider in granting permit, but must not be construed as
being exhaustive, and factors in decision need not be limited to those implicit in enabling
Act
Decision: relevant for Director to consider Min’s policies, though can’t act under dictation
nor fetter his discretion (i.e. not consider specific circumstances of the application and just
use policy as override); appeal dismissed
Facts: App’s own land, obtained subdivision approval to dvp land in stages into industrial park, application to build waste
water treatment facility under Clean Water Act rejected
JH: application for JR dismissed by AB Ct QB  appealed to AB CA…
Imperial Oil Ltd. v. BC (Ministry of Water, Land & Air Protection), 2002, BCSC
Issue
Was the consideration
(of whether the tort
claim had been paid)
relevant in the Min’s
decision?
Notes
Argued impugned
decision defective due
to reliance on
irrelevant
considerations
Reasoning/Ratio
Imperial arg: settlement for tort claim only reason Min. withheld AIP (irrelevant consideration)
requests mandamus, as should get AIP (rather than go through same process w different
d/maker)  Minister: but further consultation w owners needed before AIP given  Ct: ignores
fact that Min. admitted before he was ready to give AIP if tort claim paid
Enabling statute doesn’t confer jurisdiction on Min. w respect to tort claims, & can’t do
indirectly what he can’t do directly
Min. ready to issue AIP after confirming w tort claimants that settlement was sufficient 
essentially put claimants in control of decision (improper delegation & improper fettering of
discretion)
Decision: Mandamus ordered (unlawful delegation/fettering)
Facts: Imperial attempted to get approval in principle (AIP) fr Min. of Water, Land and Air Protection for proposal to
remediate land; Min. wouldn’t approve until certain lawsuits were settled with local owners and village
[Discrimination in the Exercise of Reg-making Power]
Cts don’t like to weight into these types of args; in Charter context, discrimination has serious implications, but in admin
law, almost inherent feature in modern-day reg.
Moresby Explorers Ltd. v. Canada (AG), 2007 FCA
Issue
Are policies
example of
administrative
discrimination?
Notes
Allegations of
admin
discrimination
Reasoning/Ratio
1. Appellants: admin discrimination as nowhere in empowering leg. does it say Superintendent can
discriminate based on business size or race  Ct asks: does Superintendent have leg. authority to
distinguish b/w or create diff. classes of businesses?
In Sunshine Village Corp. [GIC set building permit fees higher in Banff & Jasper parks than
other ntl parks], Fed Ct found admin discrimination as nowhere in governing leg. did it
expressly/implicitly authorize discrimination, but SCC found leg. broad enough to permit
GIC to draw distinctions b/w users of ntl parks (opposite of municipalities, where ability to
discriminate must be expressly allowed)  GIC may discriminate, unless expressly
prohibited
Not
2. Resp: appellants challenging policies (made pursuant to Regs), not Regs themselves, which are not
37
representative
case, but
discrimination
hard to make out
in best of cases,
this was bad set
of facts
subject to review  Ct: grounds on which policy may be challenged are limited to the following:
 Illegality: goes to validity of policy rather than its application, Cts can adjudicate this
anytime
 Contrary to public policy: depends on context, if reinforces stereotypical conceptions of
particular group, contrary to public policy vs. seeks to ameliorate condition of historically
disadvantaged group, it’s acceptable (s. 15(2) of Charter)  this not a distinction that’s
invalid on public policy grounds
Decision: Distinction drawn in AMB’s policies not ultra vires Superintendent based on
discrimination (regs wide enough to incl. power to draw such distinctions, OR, following Sunshine
Village Corp., nothing in Act to prohibit distinctions) +
Facts: Archipelago Mgt Board manages a Park Reserve, adopted set of policies to protect park; est’d total carrying
capacity, allocated total user-day/nights per year to 3 groups (independent, Haida tour-operators, non-Haida tour
operators) + business caps (max. user-day/nights for any one business); Non-Haida tour operators’ credits oversubscribed
and there are no Haida tour operators, alleges unlawfully restricting growth of its business
[Procedural Fairness]
Binnie, J quote fr Dunsmuir at pp. 462-463 *Tollefson likes this:
“… a fair procedure is said to be the handmaiden of justice… Nobody should have his or her rights, interests or
privileges adversely dealt w by an unjust process… Constitutional considerations aside, however, statutory
protections can nevertheless be repealed and CL protections can be modified by statute.”
When breach of PF found, no other remedy than to quash decision, and send back for redetermination (as can’t
hypothetically ask what would have happened w proper PF)… subject to CSOR
Even though w passage of time, some things may have changed…
Chameau Exploration Ltd. v. Nova Scotia (AG), 2007 NS SC
Issue
(1) Did Director
act outside
jurisdiction in
det’g UK govt
owned wreck?
(2) Err in law?
(3) Breach rules
of PF/ NJ?
Notes
Challenged based
on procedural
fairness
Reasoning/Ratio
Re #1: App arg: enabling leg. doesn’t allow Director to det. ownership of vessel
Re #3: Did Director breach rules of PF and NJ by denying applicant op to be heard w respect to
ownership of wreck?
Ct: Outlines Baker factors to det. content of PF, applies to situation:
1. Nature of decision & process used to make it: no op to respond
2. Stat scheme: doesn’t discuss
3. Importance of decision to individual: significant interest in permit being issued
4. LE: LE that Director would follow standard procedures set out in leg.
5. Discretion afforded to/expertise of tribunal to decide own procedures: doesn’t
discuss
Decision: Chameau asks for permit denial decision to be quashed  YES, certiorari granted
Also seeks order of mandamus  NO, as during reviewing procedure used by d/maker, it’s not Ct’s
role to sub its on opinion for that of d/maker
Facts: Petitioner co. explores and recovers artifacts fr shipwrecks; applied for permit under Special Places Protection Act
fr Exec Director of NS Museum; denied due to UK govt allegedly owning wreck in permit area; was a procedural blunder
when co. not given op to respond (notice & comment!) to evidence fr UK govt re. ownership  it’s a counterfactual to
say “what if co. had been given right to respond/ do we know if tribunal would have made same decision?” (doesn’t
matter)
[Failure to Give Reasons]
Tribunal relying on set of facts to reach legal conclusions, tribunal must provide reasoning used to reach your conclusion
*Precedent saying we need reasons in enviro. context: Kearl Oil Sands case
 Next frontier is adequacy of reasons… (maybe by indicating that d/maker must demonstrate awareness of
BAT?)… if reject accepted science (esp. that they’ve commissioned), they must do so w ref. to some other body of
science of equal repute, must JUSTIFY, can’t just say “we don’t like this science”  this is law in US
38
Pembina Institute for Appropriate Dvpt v. Canada (AG), 2008 FC
Issue
Reasoning/Ratio
Did EA
P arg 1: Panel erred by failing to provide a cogent rationale for its concl. that adverse enviro effects
conducted by JRP of GHG of proj would be insignificant  Imperial: not role of Ct to insist  Ct: Ct recognizes in(joint b/w Alb
depth explanation of scientific data used to reach conclusions would be disproportionately high
EAUB & CEAA) burden; however, Panel must explain, in general way, why effects of GHG would be insignificant
comply w
Ct fully aware of level of expertise possessed by Panel, so should be awarded high degree of
mandatory steps
deference  however, deference only triggered when concl. articulated
in CEAA &
If experts cannot explain their concl. to fair-minded observers, they’re not expert
Panel’s TORs?
P arg 2: Panel erred by failing to comment on effectiveness of intensity-based “mitigation”
Notes
 Ct: intensity-based targets allow GHG to increase (judge incredulous that it would lead to
Admin decision
decrease), so concluding that targets would be appropriate mitigation measure req’s articulated
impugned due to
reasons…
failure to give
Decision: incumbent on Panel to provide reasons for conclusions, Panel erred in law by failing to
reasons
provide reasons, as mandated by s. 34(c)(i) of CEAA; JR allowed in part (impractical to conduct
Panel again), same Panel to provide reasons (in meantime, stay granted; permits put on hold)
Facts: P sought JR of Panel reco to RA (DFO) that proj be able to proceed, as adverse enviro. impacts & GHG emissions
were “insignificant” (Co. says emissions would decline over time; Panel: intensity-based approach)
Public Interest Standing, incl. Finlay Test pp 468-478
“Public interest” is amorphous concept; how do we understand the role of public interest litigants in admin processes and JR?
(PI standing is separate & apart fr private interest standing
Note: at this pt, Cdn Cts’ standing test more liberal than Cdn Admin tribunals! (i.e. EAB in current Kitimat case saying no
way to get PI standing, interpreting word “aggrieved” as directly affected  interpreting their home statute, not a Sup Ct. so
only way to grant standing is through “aggrieved” provision)
1986 Finlay test for public interest standing (first time to say you can get PI standing in non-constitutional case):
1. Is there a justiciable and serious issue to be heard? *almost always a serious issue, this arm is a “gimme”
2. Does the applicant have a genuine interest in the subject matter? (Downtown Eastside Sex Workers puts
emphasis on genuine interest part of test rather than “directly affected”)
Citizens’ Mining (as ref’d in MiningWatch):
a) Longstanding reputation;
b) Significant work on subject matter being challenged;
c) Interest must be greater than that possessed by member of general public.
3. Is there another reasonable and effective manner of the case to be brought fwd?  reformulated in 2012: is
proposed suit a reasonable and effective means of bringing the matter before the Ct? (Cromwell, J. in Downtown
Eastside Sex Workers) – broadens Finlay
“Rational for this final reqt is that those most directly affected by admin action are often in best position to
bring to the ct the info necessary for an appropriate resolution of the dispute” [MiningWatch v. Canada]
 But standing still barrier for public interest litigants:
“Balance [must] be struck b/w ensuring access to justice and preserving judicial resources” [Cory, J. in
Canadian Council of Churches, 1992] *this case regularly invoked by opponents of public interest standing
 Debunked in Downtown Eastside Sex Workers by Cromwell, J: floodgates concern at issue never materialized
[Benefit of Public Participation]
Summary next article:
 Balanced review of benefits of public participation w admin/judicial process; why should we finance this?
Tollefson comments:
 Tollefson likes to ref. this article at Ct, also mentions that Scott wasn’t radical (later became ON’s AG), don’t need
to be “wide-eyed idealist” to support financing of public participation; question is “to what extent should public
interest litigants be denied benefits accorded to other, private interest, litigants?”
History:
 JR now has become statutory exercise, but roots in CL
 At Fed Ct, crystallized in s. 18.1 Fed Cts Act, says to bring JR, must be “directly affected” (associated w rigorous
39
standing test)
Raj Anand & Ian Scott, “Financing Public Participation in Enviro. D/making”, 1982



Economic barriers to participating in d/making in all areas of litigation  worst for those suffering fr social, psych,
cultured impediments to the redressing of their grievances
Additional barriers for public interest groups:
1. Enviro. concerns spread across range of projects (interests of dvpt more focused)
2. Enviro. concerns generally not homogenous
3. “Free-rider” phenomenon – rational/self-interested individuals will not act to achieve their common/group
goals (unless groups is small or there is incentive)
4 benefits accrue w increased public participation:
1. Provides d/makers w greater range of ideas (and provides view point not otherwise available to d/maker)
2. Enhance public acceptance of judicial/admin decisions
3. Agency dependence on industry for political support may be alleviated by broad participation by other
parties
4. More viewpoints allow d/makers to be more thorough in analyses
Shiell v. Canada (Atomic Energy Control Board), 1995 Fed TD
Issue
Does applicant have
(public interest) standing?
Notes
Counterpoint to
Algonquin
Reasoning/Ratio
Applicant must have direct, personal interest in matter in order to be granted standing
(following Finlay)  previous case on injunction to do w same matter, applicant denied
standing (“Pl must be affected in the sense that the issue has some direct impact on her…
clearly distinguishable fr Finlay”)
Ct: her interest neither direct, nor personal; decision won’t affect her in a way diff. fr any
other member of general public
Rigid, directly affected
Policy: Finlay (ref’g Borowski) and subsequently, Cdn Council of Churches addresses
approach (probably now
concerns re. balancing judicial economy w access to justice (floodgates arg)
would be contrary to
Decision: “Regrettably” denied standing (“regrettably” b/c App clearly had bona fide interest
Downtown Eastside Sex
& concern) due to not meeting direct, personal interest test
Workers)
Facts: Applicant wants to JR decision of Atomic Energy Control Board for approving amendment to operating license for
uranium mine & mill; lives several hundred miles away, denied standing in previous case concerning injunction; Note:
very few ppl live close to proposed facility
Algonquin Wildlands League v. Ontario (Minister of Natural Resources), 1996, Ont Div Ct
Issue
Do applicants have
standing?
Notes
Counterpoint to Sheill
Reasoning/Ratio
Though no standing as of right, Ct has discretion to grant public interest standing (as per
Finlay)
1. Serious, justiciable issue?  YES (pending applicant can overcome hurdle that
issues are serious)
2. Applicant has genuine interest?  YES
3. Other way to reasonably, effectively bring matter fwd?  NO
Applicant NFP’s met
public interest standing
Decision: Applicants have standing
test laid out in Finlay
Facts: Two NFP public interest enviro orgs request declaration & injunction
MiningWatch Canada v. Canada (Minister of Fisheries & Oceans), 2007, FC
Issue
Is public interest
standing est’d?
Prop args:
1. not serious
issue (Finlay #1)
2. Apps do not
Reasoning, Martineau, J:
Re #1, 2, 3:
Finlay test for public interest standing applied:
1. Serious/justiciable issue?  YES (legal q re. not complying w CEAA)
2. Applicant has genuine interest in matter?  YES (“more than a bona fide interest & concern about
social and enviro issues is necessary to obtain public interest standing”, but Citizen’s Mining test:
a) Longstanding rep.
40
have genuine
interest (Finlay
#2)
3. Other directly
affected parties
who chose not to
come forth w
application for JR
(Finlay #3)
4. Already
decided in
previous case
(True North)
Notes
Quite scathing of
CEA Agency’s
handling of
situation
b) Significant work on subject-matter of challenge
c) Interest greater than that possessed by member of general public
 Lack of participation in an assessment doesn’t preclude interested party fr seeking
standing (MiningWatch doesn’t have resources to get involved in every EA)
3. Other reasonable, effective way for matter to be brought fwd?  NO, takes Citizens’ Mining view
that no evidence of others w genuine interest that could reasonably be expected to bring a challenge
 despite Resp arg, given interconnectedness of modern society, Ct not persuaded that
geographical proximity ought to be determinative factor when assessing public interest
standing (likely the way going fwd, after Downtown Eastside Sex Workers)
 note: in applying test, Ct consistently rejected restricted reading of “directly affected”
under s. 18.1(1) of the Fed Cts Act – codification of standing in Act doesn’t preclude using PI
standing test
Also considered purpose of CEAA (projs req’g EA considered careful/precautionary manner, so don’t
case “significant adverse enviro effects”, meaningful public participation), and particular
circumstances of case
Applicant alleging that impugned decision is departure fr pos. duty to consult public
Re. #4: True North having decided issue before  CEAA changed substantially in 2003, since that
decision
Decision: Public interest standing granted
Facts: Mine in Tahltan territory, Red Chris mine
JH: Reversed at FCA, reversed again at SCC (upholds Martineau, J)
Interim Injunctive Relief incl. RJR MacDonald Test, pp 478-487
Many enviro cases, permit’s being issued that will permanently change landscape, harm cannot be compensated for
Tollefson: default position is if co. has permit, good to go, can be appealed after… this dev’d in private law setting, but not in
public interest setting (can’t just holus bolus export private law principles)
“Interlocutory injunctions are not merely procedural motions at the periphery of main litigation. In many enviro
cases, they are the litigation… granting injunction reveals value placed on protected interest” (Prof. McLeodKilmurray)
RJR MacDonald test for availability of injunctions:
1. Serious issue to be tried? – canvass quickly
Frivolous or vexatious?
May be revisited in balance of convenience step [Algonquin Wildlands League] * “gimme” step
2. Applicants suffer irreparable harm if injunctions refused?
If public interest harm, not actual harm to applicants, skip this step & weigh public harm in balance of
convenience stage [Algonquin Wildlands League]
3. Does balance of convenience b/w parties to application justify relief sought?
“should have regard not only to the harm which the parties contend they will suffer, but also to the nature of
the relief sought, the nature of the legislation which is under attack, and where the public interest lies”
[Algonquin Wildlands League]
Note: often financial undertaking will be reqd by applicant to compensate for economic losses of resp. in case the
injunction is granted
C. Tollefson, “Advancing an Agenda: Reflections on Recent Developments in Public Interest Enviro.
Litigation” 2002



Common stumbling block faced by enviro. litigants has been inability to get interlocutory injunctive relief
Judicial interpretation of RJR MacDonald test, & Cts typically req applicant to undertake to indemnify resp. for
damages in event claims dismissed
2 main difficulties:
1. Undertaking reqt: most enviro litigants not financially able to do so  reasons for imposing this reqt
(applicant not unjustly enriched at expense of party against whom relief granted) little application in
context of PI litigant; in Cda, we have model of costs that is punitive
 US Cts: alive to this, have allowed public interest litigants to post nominal bond
 Recent Cdn cases suggest mvt: Friends of Stanley Park v. Vancouver: “applicant in matter of
41
serious public interest… est serious q to be tried… relief should not be rendered ineffectual by
reason of fact that applicant may not have financial wherewithal to provide viable undertaking”
2. “Irreparable harm” reqt fr step #2 of RJR test: typically focused on risk to applicant of physical
injury or economic loss, where enviro, typically argued that “irreparable harm” is harm to enviro.
 Wilderness Society v. Banff: logging of old-growth forests doesn’t constitute “irreparable harm”
despite expert evidence
 Recent cases more responsive: “irreparable” refers to nature of harm, not its magnitude
1. 1998, Monin, JA: “trigger a non-reversible process”
2. Lamek, J: “trees will be gone, if not forever, at least for decades”
3. Fed Ct – TD: trees “could not be replaced in person’s lifetime”
 US Cts: harm to enviro will almost always be “irreparable”
[Injunction Caselaw in the Enviro. Context]
Algonquin Wildlands League v. Ontario (Minister of Natural Resources), 1996, Ont Div Ct
Issue
Resp. submits no
irreparable harm (actually,
no harm at all), & no harm
to the applicants
themselves which is
precondition to step #2
Notes
Look at public interest
harm in stage 3 of RJR test
(balance of convenience)
Reasoning/Ratio
Stay requested analogous w injunction, so apply RJR MacDonald test:
1. Serious issue? (not frivolous or vexatious)  YES
2. Irreparable harm? PI harm should be considered at stage 3  SKIP THIS STEP
3. Balance of convenience?  App’s say irreparable harm to PI if stay not granted; Resp’s
say irreparable harm to PI if stay is granted!
 Considerable conflicting evidence, Ct assumes some harm to natural growth & wildlife;
also assumes some harm to Crown revenue, wood supply to mill, job loss as consequence,
etc. *conventional economic cost/benefit analysis, default assumption in balance of
convenience is that applicant will put up undertaking to compensate for Resp’s economic
losses
Ct unwilling to interfere w Decision: Balance of convenience favours Resp; inappropriate to interfere w action of
govt, even for a short time. Motion dismissed.
govt action
Facts: Applicants allege noncompliance w Crown Forest Sustainability Act and conditions imposed by EAB  request
relief in form of a stay
Imperial Oil Resources Ventures Ltd. v. Canada (Minister of Fisheries & Oceans), 2008, FC
Issue
Proponent applies
for stay of
application, or
alternately for
injunction
prohibiting Min.
fr revoking
authorization
given under
Fisheries Act s.
35(2)
Reasoning/Ratio
Applicant args: nothing in Fisheries Act that allows Min. to revoke authorization; JRP’s report not
quashed/set aside but sent back to Panel for better explanation; s. 37 of CEAA only req’s Minister to
take report into acct, not rely solely on its rational
Resp: Minister didn’t revoke authorization, but was rendered void as legal consequence of TremblayLamer decision (since material flaw in EA process, short circuits the sequence; Minister can’t
proceed until all reqts of CEAA fulfilled)
RJR MacDonald test for injunctions:
1. Serious issue  YES
2. Applicant will suffer irreparable harm  Ct not convinced; short-term delay will most likely not
be major impediment in overall sched of proj.
3. Balance of convenience favours applicant  n/a to consider
Decision: Imperial’s application for interim relief (stay) dismissed, crucial importance to resolve all
the uncertainties (legal and otherwise) before embarking on such an important project
Facts: Huge oil sands mine project to continue to 2060 w reclamation at end; subject to reg. primarily by AB Enviro
(Enviro Protection & Enhancement Act) & AEUB (pursuant to Oil Sands Conservation Act), also req’d authorization by
Min. under Fisheries Act  so subject to EA process of both AB and Cdn govts
Signed JRP agreement, would conduct EA under CEAA; JRP issued report, AB Enviro & AEUB issued approvals,
accepting all conclusions & recos of report
Background: Application for JR of JRP’s report filed, alleging didn’t comply w mandatory steps of CEAA & Panel’s
TORs; despite this, Min. issued Fisheries Act authorization, then Imperial immediately commenced work on project; JR
allowed in part, Tremblay-Lamer remitted matter back to same Panel to supply rationale for concl (that proposed
42
mitigation measures will reduce potentially adverse effects of Panel’s GHG emissions to “insignificant” level)
New JR: directed towards Fisheries Act authorization (requesting quash order & interlocutory injunctive relief); DFO
delivered letter to proponent w opinion that authorization had been rendered a nullity as result of Tremblay-Lamer’s
judgment
Current JR: proponent filed this JR for stay of Min.’s decision to revoke authorization under s. 35(2)
Costs in JR Proceedings, pp 487-496
Tollefson’s notes:
 Area where gradually, change is happening (b/c squarely w/in discretion of judges)
 Law reform op: make case for departing fr typical costs regime, every case you have a new op. to make a run at it
 Recent trends (not good): Cts say “it’s your fault you took on X Company, they’re for all intents & purposes private
individuals when they step into a courtroom so should be subject to same protections”  may not have to pay govt
costs in suit against Crown, but will still have to pay the Corporate intervenor’s
C. Tollefson, “Costs in Public Interest Litigation: Recent Dvpts & Future Directions”, 2009

Canada:

Public interest litigants can be subject to paying other party’s costs (govt & private party intervenors)
Allocation of costs, governed by statute but also matter of judicial discretion  “erratic & unpredictable”
results
 Arguments for est’g more coherent, predictable public interest cost jurisprudence
 Costs follow on “partial indemnity basis” (½ costs), 2-way regime
o Rationales: compensation (for defending suit), deterrence (to deter wrongful conduct – both specific &
general), spoils (costs go w victory per se)
 Counterargument to rationales: don’t need to deter people bringing action for public benefit or
sorting out novel issue
o DISCRETION to deny if bad faith/sharp conduct, also if public interest litigant (novel pt, public
significance), access to justice (undue hardship)
England: 2-way regime (litigation costs can flow in 2 ways, note: full indemnity)
US: no-way regime (both parties pay own costs)
 modified in citizen suits to 1-way regime (public interest litigant receives costs at full indemnity if successful)
 led to robust practice area & enhanced efficacy of fed law enforcement
Canada reform efforts: carve out “public interest costs exception” fr reg. 2-way regime to a 1-way regime
C. Tollefson, “Costs in Public Interest Litigation Revisited”, 2011
 3 scenarios in costs case law in public interest litigation in Canada:
1. Ex post claims for special costs
2. Ex post claims for relief fr adverse costs
 Test/criteria originated fr Ont Law Reform Commission (OLRC) in 1989 Report on Standing:
1. Issue of importance which extends beyond party’s interests
2. Party has no personal/pecuniary interest in outcome
3. Issue not previously det’d
4. D clearly has superior capacity to bear costs
5. Pl hasn’t engaged in vexatious, frivolous conduct
 Applied in Harris v. Canada (Fed Ct), Guide Outfitters Association (BCCA), Consolidated Orcas (Fed Ct –
also b/c of “unjustifiably evasive and obstructive approach of resps”)
 Modified & distilled, “bundled approach”, in Victoria (City) v. Adams, any time ct asked to depart fr normal rule
as to costs (2-way):
o 1. Public importance transcending interests of parties, not previously resolved (PUBLIC BENEFIT)
2. Party has no personal/pecuniary interest in outcome (ACCESS TO JUSTICE)
3. Opposing party superior capacity to bear costs (ACCESS TO JUSTICE)
4. Claimant not conducted litigation abusive, vexatiously (JUDICIAL DISCRETION)
3. Ex ante (advance) applications for costs
 Unique to Canada; exceptional cases, opposing party to pay public interest opponent’s costs in advance in any
event
 Genesis in Okanagan Lake Indian Band (2003, SCC), reqts:
43
1. Party can’t genuinely afford to pay litigation, no other realistic option exists to bring issue to trial –
litigation would be unable to proceed
2. Claim prima facie meritorious
3. Transcends individual’s interests, of public importance, not been resolved previously
 “sufficiently special” that to deny costs application would be contrary to interests of justice (Little
Sisters case)
 Uncommon: 3-4 applications in Canada per year
 Only 3 made it to SCC: Okanagan Lake, Caron (both upheld), Little Sisters (reversed)
4. [Aus & UK] Protective Costs Orders
 Common in Aus & UK, not in Canada, despite majority in Little Sisters 2 case mentioning it (indicates
openness of SCC to recognize)
 UK 2005 case, Corner House Research lays out test:
1. Public importance
2. Req resolution
3. No private interest
4. Having re. to financial resources, just & fair
5. W/out order, would likely discontinue proceedings
 if awarded, 2 limitations: 1) just “solicitor’s feeds & fee for single advocate of jr. counsel status”, 2) “cap” on
recoverable costs
Current issue: PCO denied in Ecojustice’s 2012 Sarnia Chemical Valley case, arguing s. 7 & s. 15 rights infringed by Ont.
MOE & Suncor Energy, at Ont Div Ct, but Tollefson argues too narrow of a test when requiring “wouldn’t bring case w/out
PCO”
Environmental Assessment
Tollefson notes:
 Seek to anticipate, prevent, reduce enviro impacts of proposed projects  imposing conditions or not approving
 Too often EA serves to co-opt opposition, legitimize decisions that should not be  result, ppl become
skeptical/hostile w re. to EAs
 Also, intervenor funding reduced
 Processes come to be dominated by professional consultants that work w lrg co’s
 Concern over efficiency caused jurisdictions to scale back EA processes
 Municipalities (land use planning) & other ad hoc processes at all levels of govt also option (EA only one
prominent example of this)
 Important to recognize how resp. for EA is allocated b/w proponent & regulator (NEB, CNSC or CEAA)
o “Proponent-driven” vs. “Agency-driven” (i.e. Enbridge hearings bit more Proponent-driven)
o Often, govt doesn’t have resources to do assessment, or don’t like what scientists are saying to don’t
bring fwd their evidence…
CEAA 1995, pp 497-508
History:
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Sound EA:
[US had Ntl Enviro Policy Act (NEPA) in 1969]
1970’s: EA’s started (EA Review Office to oversee non-stat. process of Fed projs, had screening process)
1973: Cabinet policy directive, expanded to private projs w Fed involvement
First evolution: 1974 – 1977, Berger inquiry into Mackenzie Valley Pipeline >>
Parallel w this: Fed EA process strengthened/formalized as EARP
1983: Beanlands & Duinker proposed new approach to enviro impact assessment >>
Parallel w this, 1984: EARP process formalized by Cabinet Guidelines Order
o Ct cases confirmed binding nature of Guidelines Order
o However, “d/making resp” interested narrowly to mean legal duty
1990: bill to entrench Fed EA process in leg, passed by Con govt in 1992 (CEAA)
o 1993: Lib govt took power, made changes
 1995 CEAA came into effect
80s – 90s: most Cdn provs and enacted EA statutes
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44
adaptable (to diff. projs), clear, certain, fair, consistent (to facilitate public participation), clear link b/w process
& decision, monitoring & feedback capabilities
Number of key issues in design of EA process:
1. What activities are to be covered?
o designate by list, threshold test, political/prof discretion
2. What is the nature of the EA process?
o “one size fits all” or flexible?
3. What is the scope of the assessment?
o Whole proj or 1 component? biophysical or socio-econ too?
4. What is the nature & implications of the final outcome?
o info gathering (w reco)  binding decision
EARP vs. CEAA 1995:
 CEAA limited to undertakings & physical activities, EARP also reviewed policies, plans, programs
 CEAA has Law List regs to trigger Fed EA process
 CEAA had 2 new process options (mediation & comprehensive study)
 CEAA’s preamble & purpose sections: EA process fully integrated into d/making, meaningfully engages public,
leads to sustainable dvpt
CEAA 1995:
 Agency resp. for issuing permits resp. for doing EA (“self-assessment”) – “RESPONSIBLE AUTHORITY”
(RA)
 Elaborate, complicated process to det. whether EA applied & what track it was to follow
1. When did Act apply? complex combo of defs & proj lists (for constitutional reasons)
o Def of “project”: 1) undertakings related to physical work (unless excluded), 2) activities not related to
physical work (unless included)
o + s. 5: list of Fed decisions that would trigger CEAA (sometimes prob. as unclear at start)
o OR ss. 46 – 48: transboundary decision trigger CEAA
2. Scoping of Assessment:
o s. 15: scope of activity to undergo EA
 s. 15(3): scope of proj (i.e. whole mine, or just the bridge that built over navigable water to mine
& tailings pond affecting river?), CE, considering alts, role of public
o s. 16: scope of EA
o subject of much litigation (discretion of Fed d/makers in det’g scope of proj to be assessed, factors
considered & factors’ scope) – i.e. Red Chris Mine, SCC, said should look at whole project  CEAA
2012 reaction to SCC’s decision?
3. Process options:
1. Screening (alt form of self-assessment):
 Frequency: 99% projs got only this
 Characteristics: min. process reqts, max. flexibility, modest, inexpensive reqt for business
 Conducted by: Fed. d/makers resp. (RAs)
45
 Public: only public notice reqts, min. waiting periods, active public engagement discretionary
 Refer to Panel: could do so before, during, after screening (s. 20)
 Follow-up: at discretion of d/makers
 Tollefson: probably not that effective, but was a filter
2. Comprehensive study (alt form of self-assessment):
 Frequency: 10-15/avg. year, much more rare
 Characteristics: hybrid of screening & panel, more reqts/more fulsome than screenings, but not
onerous
 Conducted by: CEA Agency (only process), MOE oversight, RAs make decisions
 Public: mandatory public engagement at all critical steps, participant funding program (hearings
optional)
 Refer to Panel: decision to refer to panel early on, not revisited
 Follow-up: mandatory
 i.e. Red Chris Mine case: b/c way described proj, met threshold for Comprehensive Study; but
then govt re-scoped EA to bring it back down to Screening track
3. Panel review (independent assessment), s. 34 of CEAA:
 Frequency: 1-5/avg. year (Prosperity Mine/Fish Lake most recent) *usually when only way co.
would get public support it needed would be through Panel Review (so in that way served as
benefit to co. as well)
 Characteristics: power to summon witnesses same powers as Ct of Record, orders enforceable
at Fed Ct
 Conducted by: MOE (process incl. TORs), independent panel members, reco subject to Cabinet
approval, RAs can make decisions
 Public: always have public hearings, intervenor funding, transparency measures
 Joint Panels: w other jurisdictions, usually pursuant to MOU
 Substitution: s. 43(1), only w other Fed. processes
4. Mediation (independent assessment):
 Frequency: informal in other processes or as sep. process (at discretion of MOE)
 Conducted by: mediator appt. by MOE, report to RAs to make decision
 or some combo of above
Tollefson notes: though never regarded as perfect model, in hindsight, much more sophisticated than CEAA 2012; brought w
it much more certainty (had list of projs, had Fed. trigger, that necessarily led to EA – that was part of rationale for drafting
CEAA 1995 as it was, quid pro quo to business for the extra effort of having EAs)
CEAA 2012, pp 508-523
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Repeals & replaces CEAA 1995
46
1. When does CEAA 2012 apply?
 Triggering discretionary (big change fr CEAA 1995) – by MOE (if not “designated proj”, by s. 14(2) & CEA
Agency (if “designated proj”)
 must uncertainty, likely only small % of projs will trigger *don’t know yet when CEA Agency will
req. EA
2. Scoping of Assessment:
 Changed fr broad scope to narrow one focused on discrete issues w/in reg. authority of Fed govt (fish & fish
habitat, aquatic species, migratory birds)  where are terrestrial mammals? (caribou, etc.)
 full assessment only possible if Prov fills in gaps (“we’ll look at our own, you look at your own”)
 Looking at 2 aspects:
(1) scope of proj;
(2) scope of assessment
 Number of Fed. d/makers drastically reduced (NEB, CNSC, & CEA Agency for all others) – 3 possible tracks
 interesting b/c CEAA 2012 moves away fr self-assessment basis, but leaves self-assessment to NEB
& CNSC… are they even well-positioned to be carrying out EA?
 For CEA Agency, mandate is to not do EA when don’t have to, try to delegate to other agency (remarkable
change to approach fr CEAA 1995, and cooperative approach)
3. Process:
 [1] (1) Screening + (2) Comprehensive Studies combined into one-size-fits all narrower scope “standard EA
process”
1. Proponent registers w CEA Agency
timelines tight: 10 days to request more info fr proponent, 20 days for public comment, decision w/in 45
days
2. CEA Agency says yes or no to EA (proponent can’t do anything until this pt) – decision posted on
electronic registry
3. If no EA or complies w conditions of EA, proponent can move fwd
3. If EA, NEB or CNSC (or CEAA for all others) starts EA process w notice of commencement….
process not set-out in Leg. (except public notice reqts & timelines pursuant to s. 27 – 365 days time
limit for standard, up to 3 mo. extension)
 MOE has 60 days fr notice of commencement to designate to Panel…
 [2] (3) Panel review remains but v. different rules
o No panel review for NEB or CNSC
o One-person panels now permitted (before, just 3-person panels)
o Minister can seek further info fr proponent after Panel report submitted (gd to fill in gaps, but doesn’t
allow intervenor & Panel perspectives in considering info)
o 2 yrs time limit for decision, up to 3 mo. extension (MOE reqd to specify time limits for individual
steps), at end of time referred to CEA Agency to complete if not done
o Unrecognizable fr Panels in CEAA 1995 due to narrower scope
o Power to est JRP w other jurisdiction  only way to fulfill comprehensive assessment
 n/a (4) Mediation eliminated
ss. 67-68: projs on fed land & outside Canada – no reqt for EA but only req decision as to whether proj likely to cause
significant adverse enviro effects (& if justified)
4. Decision-making:
1. RAs det. if proj “likely to cause adverse enviro effects” (where CEAA resp. authority, decision made by
MOE)
2. If yes, GIC det’s if effects justified in circumstances
3. If yes, RAs det. conditions (but only related to fed. authority)  ability to impose conditions limited by
CEAA 2012
s. 54: decision must be made public
Equivalency w Prov EAs:
 Equivalency (s. 37): Prov EA found to be equivalent, no Fed EA reqd… remains to be seen if Fed. d/makers
must consider results of Prov EA when making applicable authorizations
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Scope of EA:
 Changes to scope of Fed. EAs has potential to be most significant change  narrows, makes it info-gathering
process (i.e. TrueNorth case, oil sands project scoped as river destruction proj. b/c that’s what triggered the Fed
EA)
vs. CEAA 1995: scope quite broad, must be at least the full project (Red Chris case)
 Def. of “enviro. effect” severely narrowed: 1995: any effect on biophysical enviro. (incl. social, econ, and
cultural effects of those changes) vs. 2012: s. 5(1) = small # enviro. components under Fed. control (i.e. fish,
aquatic species, migratory birds; fed. lands, impacts on Ab ppl)
o s. 5(2) allows other effects to be considered, time will tell how this is exercised
 Factors to be assessed changed, now doesn’t incl. alternatives to project & need for project (discretionary before,
but had become commonplace to incl in EA)
o Now, results of regional studies incl., but only optional
 now Fed EA essentially a regulatory info-gathering process w focus on components of proj. under direct reg.
control
Harmonization w Prov EAs:
 CEAA 2012 makes extraordinary efforts to ensure fed process will not apply whenever there’s concern about
overlap w prov or other process (picks one jurisdiction)
 Discretion to decided on case by case basis
 If there’s duplication, it’s w other fed. reg processes, not w EA processes carried out by other jurisdictions!
 Substitution & Equivalency – both req. Min. forming “opinion” that process in q “would be an appropriate sub”
o Substitution (w Prov EAs): mandatory language, triggered at request of prov.
o Equivalency (w Prov EAs): takes one step further, & allows GIC to fully exempt designated proj. fr
CEAA once Prov. substitute approved + Prov process id’s significant adverse effects & ensures
implementation of mitigation measures
 CEAA 2012 shifted fr cooperative approach designed to encourage one comprehensive EA process to
delegation to provs & narrowing of Fed EAs (now gathers info already needed for Fed reg authorizations
 will place significant new burdens on Prov & other EAs, as well as Ab self-governing agreements
… One would think w all the above constraints, you would allow more public participation to come in and do heavy lifting…
however, quite the opposite…
Public Engagement
 Further step backwards (few leg. reqts re. public participation, strict timelines, fewer fed EAs, new triggering
process as Prop encouraged to complete design & planning before applying, so public excluded fr that process)
 New def. of “interested parties”; only parties w direct interest may participate in NEB and review panel
proceedings (+ discretion of review panel in who incl!  problematic due to short timelines, so panel pressured
to exclude ppl)
 note: already being litigated by person denied standing at Line 9 hearings (alleges violations to
Charter rights)
 Everyone gets notice and able to participate in standard EA process
Conclusions
 Uncertainty how CEAA 2012 will be implemented, its effects (all changes go counter to improvements to CEAA
1995suggested in academic literature)
 Delegation to NEB & CNSC problematic as aligns w existing reg. processes
 Discretionary triggering process creates uncertainty re. application of Act and politicizes the process (removed
trigger mechanism)
 Narrow scope may reduce EA to reg. info-gathering process
 Harmonization w provs discourages comprehensive cooperative EA processes
 Major step backwards; less effective and less fair; arguably less efficient as duplicates existing reg. process;
now an EA planning process in name only; burden now shifted to provs, territories, Ab, municipal govts
Note: [Chart of diff b/w CEAA 1995 & 2012 on pp. 521-523]
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Challenges ahead for EA, pp 569-586
Scoping Challenge [570]
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CEAA report 1996: the main challenge for scoping is how to make EA manageable without eliminating issues that are
important to members of the public
o EA professionals could probably agree relatively easily on what issues are important enough to be included in an
EA
o Problem is – proponents, members of public, public officials often have different views.
A number of specific suggestions for reform have been made since this report
o Ex: House of Common Committee 2003 review – suggests national environmental priorities/international
environmental commitments be incorporated into EA process
o Ex: impact of projects on climate change
o Also recommends cumulative effects assessment be a priority under CEAA
o Regulatory Advisory Committee
 Recommends more formal scoping process and establishment of criteria
 Agency should play a more central role in the scoping process
 Scope determination must be linked to national priorities and international obligations
CEAA moves federal EA process in a different direction with a narrow/discretionary approach to scope of the project
and assessment
Result is a Fed EA process that gathers info on a narrow range of environmental issues
The Role of the Public, p 571
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▪
▪
▪
▪
▪
▪
▪
Not clearly set out in either CEAA 2012 or CEAA 1995
Public is recognized in preamble/purpose section as a potential contributor to the process, whose participation should be
facilitated and encouraged to some degree
In addition, Act requires members of the public be provided with convenient access to documents that are relevant to the
EA process
o An electronic registry is provided for under the Act to provide these documents or info on how to get them, and
provide notices about key stages in the EA process.
Actual engagement of the public is discretionary for most EAs
However, the literature and international law recognize public participation as crucial for sound decision-making
o Public is a source of information to help predict consequences of a proposed action, evaluate range of
consequences and their likelihood, to determine which set of consequences is preferable.
Page 572 provides a comprehensive list of various benefits ex: enhances legitimacy of proposed projects
The key to effective participation is:
 Early and adequate notice of an EA
 Full and convenient access to relevant info
 Assistance ensure sufficient capacity
 Meaningful opportunities to provide input into EA and decision making processes
Barriers to participation include:
o Insufficient capacity
o Lack of confidence in the ability to influence the outcome of the EA process
Although neither Act was great at providing a strong role for public participation, CEAA 2012 will be worse because
o a) There will be less assessments overall carried out and
o b) CEAA 2012 reduces the role of the public in EAs that do take place (“interested parties”)
Engagement with First Nations, pp. 573-575
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Province used to take the approach that assessments only needed to be carried for projects on or affecting reserves or
areas subject to land claims
SCC has subsequently recognized the duty to consult and accommodate
Growing recognition of the need to link/integrate consultation with the EA process
Others believe there should be a separate, parallel consultation process independent of the EA process
First Nations issues are mentioned in several places in CEAA 2012
o Purpose section refers to “communication and cooperation between responsible authorities and Aboriginal
peoples with respect to environmental assessment.”
49
Def’n of env effect includes effects of biophysical changes on “physical or cultural heritage”, on current use of
lands for traditional purposes by Aboriginal peoples, and on any structure/site/thing of
historical/archaeological/paleontological/architectural significance.
19(3) provides for consideration of Aboriginal traditional knowledge in EAs
CEAA 2012 provides for harmonization/substitution w/ EA’s carried out under land claims agreement
o provides discretion to start EA on the basis of a project’s potential impact on land that is subject to Aboriginal
rights.
Questions about whether the EA process is an appropriate tool for consultation
Can/should the EA process serve to satisfy the Crown’s duty to consult?
o SCC decisions in Taku River Tlingit and Haida suggest EA process can serve this function in certain
circumstances
Question is whether to proceed with separate consultation/EA processes, link them, or develop and integrated process
o
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Strategic Environmental Assessments (SEAs), pp 576-577
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SEA has precedent in Canada
o Cabinet directive on SEAs since 1994
o EARP guidelines order did allow for assessment of some policies plans and programs
o Some provinces have experimented with SEAs
What is a SEA?
o Various definitions
o For our purposes, a SEA includes the following elements
 1) Goes beyond a single project to consider an industry sector or region or particular
policy/plan/program
 2) Can be reactive in response to a new type of project, if it extends beyond the individual project to
look at the whole technology or industry sector/region (ex – ELC calls for SEA of LNG development in
BC).
 3) Can be reactive by responding to a proposed policy, plan, or program initiated for economic
reasons
 4) Can be proactive by responding to identified sustainable development or environmental
challenge
 5) Can be proactive by responding to a policy gap or an outdated policy identified in the context of a
project EA
When CEAA 1995 was introduced and limited just to projects, a Cabinet Directive on the assessment of policies and
programs was introduced
Under the current version, a SEA is expected whenever a proposal that may result in important environmental effects is
made to minister or cabinet for approval
When appropriate, SEA’s are also encouraged for matters of great public concern and to help implement sustainable
development goals
Not clear if social and economic considerations are to be included in SEAs, although Cabinet Directive does provide for
them to be included in the final decision.
Key change from when it was a EARP Guidelines Order to when it is a Cabinet Directive is a transition from a legally
binding process to one that is not.
o This is a drawback; legislated EA processes tend to be superior in their effectiveness and level of compliance
Federal Commissioner of Env and Sus Dev audited implementation of the SEA Cabinet Directive in 2004 and found
overall commitment and compliance was low
Few SEAs/commitment varied/limited integration of results into the decision-making process/few involved public and
few made public after the fact.
In conclusion, EAs at the federal level are far from helping overcome the limitations of project EAs and delivering
integrated decision making for sustainability.
o Process is not legislated
o doesn’t involve public
o applied in limited circumstances
o limited influence on federal decision-making.
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There have been efforts to make better use of the SEA process – the Environment Minister’s Regulatory Advisory
Committee has been looking into this since 2000 and accepting proposals about how to make better use of SEA in the
federal EA process.
Sustainability Assessments, pp 579-585
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Some say key flaw of CEAA is focus on the “significance” of environmental effects. They argue for an approach that
considers the general sustainability of proposed projects.
This is a difference in focus: from (significance approach) focusing on preventing/mitigating significant impacts on the
biophysical environment, to (sustainability approach)
seeking an integrated assessment of the social, economic, environmental benefits and risks associated with a project.
Gibson, “Favoring the Higher Test: Contribution to Sustainability as the Central Criterion for Reviews and
Decisions under CEAA” (2000)
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Suggests the use of a “positive contribution to sustainability” versus “mitigation of significant adverse environmental
effects” criterion
o Use of the “higher test” is appropriate and desirable because logical and suitable to global circumstances
However, do need to clarify what application of the sustainability criterion should be expected to accomplish, to build a
better basis for understanding how to specify the relevant requirements for proponents and other assessment participants.
There is potential for confusion about what sustainability means as an effective criterion
o 1) Tradeoffs: pursuit of sustainability entails integrated pursuit of ecological/socio-economic ends, not some type
of “balancing” although in certain circumstances tradeoffs may be necessary
o 2) Losses/unsustainable activities: S does not reject all losses/ unsus. Activities but may seek to limit them
o 3) Gains: because of the prior focus on mitigation of SAAE, need to strengthen our design for gains, and how to
assess potential benefits
o 4) Precaution: recent panel reviews have identified importance of precautionary aspect of commitment of
sustainability, but we need to clarify how this is applied in assessment work
Sustainability assessment will only be useful if the S criterion is clearly specified and imposed in ways that stress the
long term and prevent ecological sacrifices for (short term) environmental gain.
Not clear if sustainability-centered assessments should report to MOE  might be more credible if it reported to Cabinet
or Parliament, as reps of the broad public interest
Need to link sustainability at the project level to higher-level strategic assessments.
Suggests CEAA could be amended to better provide for this by clarifying definitions of environmental effects, amending
CEAA to include SEA’s, specifying meaning/implications of sustainability criterion.
**This article was prompted in part by two CEAA review panel decisions where proponents were required to provide
evidence that their undertaking would make a positive contribution to sustainability, and respect the precautionary
principle (Voisey’s Bay; Red Hill)
Fonseca and Gibson, “Kemess North fails the test” 2008
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Kemess North = a panel review convened regarding an open pit copper-gold expansion to an existing mine in a remote,
mountainous area of north-central BC
Would have dumped 700 million tonnes of acid-generating mine tailings and waste rock into Amazay Lake, a body of
water spiritually significant for FN
The BC Environment Minister turned the project down after accepting the recommendation of a federal-provincial
environmental assessment panel that had held public hearings and applied a “contribution to sustainability” test
The panel found that the project was not likely to bring lasting gains
o There would be long term effects of mine waste on ecological and Aboriginal interests
The Panel adopted a 5 pronged sustainability plan
o Env stewardship
o Ec benefits and costs
o Social and cultural benefits
o Fair distribution of benefits and costs
o Present versus future generations
Found overall benefits didn’t outweigh the costs and recommended the project not proceed
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Species at Risk
Overview, pp 649-655
P. Wood & L. Flahr, “Taking Endangered Species Seriously? British Columbia’s Species-at-Risk Policies”
(2004, Can. Pub. Pol’y)
Summary:
 In 6th major mass extinction event  know it’s caused by humans; also overexploitation of resource species, intro’g
“exotic” species in non-native areas
 Humanity, in long-term, dependent on biodiversity
 World signed 1992 Convention of Biological Diversity at world’s first Earth Summit in Rio (“the Rio Convention”)
o Committed signatories to dvp domestic leg. to protect biodiversity
o Leg. in 3 broad categories:
1. Protected areas, i.e. National Parks Act
2. Preventative measures (beyond boundaries of protected areas), i.e. BC Forest and Range
Practices Act
3. Endangered species: protecting fr further harm, incl. recovery for species & habitat, i.e. SARA
Kate Smallwood, “A Guide to Canada’s Species at Risk Act” (Sierra Legal Defence Fund, 2003)
 Cdn Endangered Species Council report said only 65% Cda’s species secure
 Though Cda first industrialized nation to ratify Rio Convention, took decade to address commitment
o SARA passed in 2002 as 4th attempt at SAR leg. (big debate whether scientists or politicians would
decide on listing)
 result is narrow protection for aquatic species, migratory birds under Migratory Birds Convention
Act, & maj. species just on Fed land (only 5% of Cda!)
 left primary for species/habitat protection to provs.
 BC/AB don’t even have species leg!
 None of provs. meeting all reqts in Ntl Accord for the Protection of SAR (primary ntl policy
doc)
 most habitat protection left to voluntary action, esp. on private land
J. Kunich, “Preserving the Womb of the Unknown Species with Hotspots Legislation” (2001, Hastings L.J.)
Why should we care about species we have never identified?
1. Present practical value:
 Nutrients for human diet, essentials (wool, wood, dyes)  however, only 20 species provide 90% of world’s food
o Potential to breed unknown species to provide genes to inc. production in desert, for ex.
 Medicinal drugs
o Genes of millions species unexplored/untapped
 Medical/scientific research
 Support to other plants/animals: i.e. insects pollinating flowering plants
 Ecological benefits: i.e. decomposition/detoxification of organic matter
 Photosynthesis: converts CO2 to O2
 For most part, this type species safe due to our self-interest, but those we don’t know about might not be…
2. Potential future practical value:
 Given imp. benefits derived fr uncharismatic & previously unimp. species, wise to preserve as many as possible to
provide future gens w genetic material to experiment
 Ea. species reps successful set strategies to meet life’s challenges/threats
 Changing enviro. (global warming, inc. pollution), some species imp. today may not survive, we need some to take
their place
 Biosphere conceptualized as “complex computer program” & foolish to destroy program’s code b/c we don’t and
can’t know imp. now or in “unforeseeably altered world of the future”
 “Canary in coal mine”: vulnerable species early warning signal that probs. may affect more species
3. Intangible value:
 Less susceptible to reduction to monetary value, but some ppl find great beauty in nature/find emotional sustenance
52
4. Moral duty:
 …not to exterminate “fellow passengers on this planet”; seen as refraining fr “murdering” another species
 Each species has in some sense a right to exist
 Alternately, seen as living legacy for children (human-centric)
Species Listing, pp 656-663
Kate Smallwood, A Guide to Canada’s Species at Risk Act (Sierra Legal Defence Fund, 2003)
Scientific listing process:
 Would mean COSEWIC reco would become list
 In lead-up to SARA, environmentalists urged Fed govt to adopt scientific process; approach under US ESA
Political listing process:
 Would mean Fed Cabinet gets ultimate decision (can veto reco fr COSEWIC)
 Proven to be failure at prov. level
SARA in reality: “neg. option” or “reverse onus” listing
 COSEWIC reco becomes list, unless Cabinet takes contrary actions w/in 9 mos.; during that time, review assessment
& consult w competent Ministers, i.e. DFO, before:
1. accept and add species to list
2. decline to add species to list *
3. refer back to COSEWIC for more info *
* MOE must provide reasons for decision (public registry)
Note: this prevents species fr being ignoring or indefinitely deferring through Cabinet inaction
Species Listing Categories:
1. Extirpated: no longer exists in wild in Cda but does elsewhere in world
2. Endangered: imminent extirpation/extinction
3. Threatened: likely to become endangered
4. Of Special Concern: likely to become endangered or threatened
Key areas where listing category imp:
1. Basic prohibitions:
 s. 32: no killing, harming, harassing, capturing, taking
 s. 33: damaging/destroying species “residence”
 Note: ltd to fed. jurisdiction only (fed. land, aquatic species, migratory birds)
 Special Concern not covered
2. Critical habitat prohibition: imminent extirpation/extinction
o s. 58: only protects CH w/in fed. jurisdiction (fed land/water, aquatic species, migratory birds) – only applies to
Extirpated if RS reco’d being re-intro’d into Cda, doesn’t apply to Special Concern
3. Recovery process: likely to become endangered
o Req’d for all species except Special Concern (get less stringent mgt plans)
A.O. Mooers et al., “Science, Policy, and Species a Risk in Canada” (2010, BioScience)
 Science req’d for sound policy-making; but translating science into policy difficult (ppl w diff. worldview may refer
to contrary info as scientific “claims”)
 Implementation of enviro. leg like SARA req’s v. clear delineation b/w all natural/social-scientific inputs &
relevant political trade-offs
Current Process:
 Assessment of Species (Pre-listing):
o Description: COSEWIC id’s species suspected of being at risk, commissions status reports for those given
highest priority (draws on broad input, w 100+ ppl generally commenting on any one report)
o Strengths:
o Science-based prioritization & assessment of species independent of legal listing decision; doesn’t
consider feasibility/cost of recovery, nor social/political ramifications
o MOST IMP: transparent separation of science & policy
o Weakness:
o Candidate species themselves prioritized, “data deficiency” doesn’t trigger further research or listing
 Listing:
o Weakness:
53
o
Imposes no obligation to list, Fed. govt can accept, decline, or return issue to COSEWIC (in making this
decision, govt considers input fr public consultations & internal econ. assessments)
 Govt has chosen not to list 23% of COSEWIC recos
o Incomplete econ. analysis: makes reg. impact assessment statement (RIAS) fr best avail. info.,
emphasizes ST, regional econ. impacts (local jobs, effects on local bus.), distracts fr LT, ntl benefits
 Econ. concerns given as reason in 50% of rejections
 Note: 9 mo. time limit extended via loophole in leg. (s. 27.3)
 Post-Listing:
o Description: Species & dwellings auto. protected on fed-mgd lands/waters; if fed. species, protected everywhere
o Provs. resp. for protecting remaining species on prov. land
o Initiates 2-step recovery process:
1. Recovery strategy [see next article]: id’s needs of & threats to species, obj’s for pop./distribution
recovery
2. Recovery action plan [see next article]: concrete recovery measures w socio-econ. impacts of measures
Both must id critical habitat (s. 2.1); once defined, Fed. govt must protect CH on fed. land (only 4% of
Cda!), & outside fed. land if it chooses (never has – this is “safety net” provision)
o Govt must report on progress every 5 yrs
o No delisting process, but species at risk are reassessed at least every 10 yrs
Note: some commentators have claimed listing process displays bias (against listing marine & Northern species); in separate
paper, Mooers recos that biodiversity conservation best served by strict, transparent, leg. timelines for all aspect of listing
process following MOE’s receipt of COSEWIC report; reco that RIAS display full costs of extinction & full benefits of
recovery (quantified) & be externally reviewed
Critical Habitat Designation, Recovery Strategies & Actions Plans, pp 663 – 667
A.O. Mooers et al., “Science, Policy, and Species a Risk in Canada” (2010, BioScience) – further extract
 Recovery Strategies:
o Production of RS slow and problematic
o Req. clarity re. whether goals elected on basis of scientific or socio-econ. considerations (adequacy of reasons)
o Much depends on meaning of undefined terms: “survival”
o Scientific def. = greater than 90% chance species persistence for at least 100 yrs
o Suggested policy def. = maintaining current pop. in short-term (what does this mean? prob. not 100 yrs)
o “Recovery”
o Policy def. = “long-term persistence” or where decline is “arrested or reversed”
o Critical habitat designation:
o s. 38: precautionary approach
o s. 41.1(c): best avail. info.
 Only 23/104 species w RS have CH designated (only 5% of total listed species)
o Litigation: Nooksack Dace & Sage Grouse cases successful in challenging RS that omitted known CH
 But is fear of litigation most efficient way for ID’g species’ CH for species recovery?
o Reco: RS could benefit fr something similar to 2-step listing process: (1) unbiased scientific proposals, (2) clear
govt response
 Recovery Plans:
o If CH not described in RS, no legal timelines to do so (as RP have no legal timelines for completion)
 Summary, more explicit/transparent consideration of competing gov’t priorities may avoid distorted implementation
o Assessment process offers clear delineation b/w independent science & policy
o But legal listing, recovery planning and implementation don’t
 Subject Cabinet listing decision process to independent, non-govt peer review (may req. longer timeline, w
accompanying interim legal protection); also subject RS and RP to independent peer review
 Structural separation of info gathering (scientific advice) & strategic planning/ action (policy) w hard deadlines
54
Recovery Strategy Litigation, pp. 667-682
Alberta Wilderness Assn. v. Canada (Minister of Environment), 2009, FC (“Sage Grouse case”)
Issue
1. What is correct
SOR for Min’s
decision to not id
CH of Sage Grouse
in the RS?
2. Does the
decision to not id
CH meet the SOR
test, and if not,
what is appropriate
remedy?
Reasoning/Ratio, per Zinn, J.
Petitioner claim: Min. erred in law in interpreting SARA  Ct: no error
of law, parties agree on interpretation, just disagree on whether, based on
best avail. info., it’s possible to identify CH
Resp claim: CH finding is finding of fact entitled to highest level of
deference, only to be interfered w if falling outside “range of possible,
acceptable outcomes” (as per Dunsmuir)  Ct: “there is no discretion
vested in Min. in ID’g CH under SARA”
Re #1: SOR reasonableness (little discussion on this)
Re. #2: Ct looked at RS itself to see if anything in it led to concl. that
decision (being the RS) was based on erroneous finding of fact (that CH
couldn’t be ID’d), made in manner w/out regard for material before it
(as per s. 18.1(4)(d) of Fed Cts Act)
RS mentions 4 types of habitat necessary for species: (1) breeding, (2)
nesting, (3) brood-rearing, (4) winter  it follows that if any of 4 can be
ID’d as critical, Min. is reqd to incl. in RS (reqd to id “to the extent
possible”); RS mentions work of researcher who ID’d nesting &
brooding habitat in Manyberries, AB  this info may change in future,
but identif’n of CH cannot be postponed for that reason alone (based on
info at point in time)
Notes
Ct dismisses govt arg
that “Ct is not an
academy of science” &
says cts must assess
record of evidence that
was before d/maker,
some of which may be
scientific to det. if
d/maker’s decision
reasonable (compare w
Palmer where judge
didn’t want to read
science report)
s. 41(1)(c) based on
precautionary principle
(Spraytech)
Decision: Min. reached decision to not incl. CH in Sage Grouse RS was
w/out regard to material before it, doesn’t fall w/in “range of possible,
acceptable outcomes” (unreasonable)
Facts: Sage Grouse listed on SARA Sched 1 as endangered, so per s. 39 MOE must prepare RS; in RS, Min. det’d
recovery feasible; s. 41 outlines reqts of RS (incl. description of species & needs, its threats, pop. & distribution objs, any
additional info reqd, when AP will be competed AND s. 41(1)(c) identif’n of CH, to the extent possible, based on the best
avail. info, incl. the info provided by COSEWIC (sched of studies re. CH to be attached when info inadequate); “Critical
Habitat” def’d as: habitat necessary for survival or recovery of listed species & ID’d as CH in RS or AP; “Habitat” def’d
as: area species depends on to carry out its life processes; Project Charter (created before RS issued) said RS wouldn’t
incl. identification of CH
JH: JR of RS for Sage Grouse b/c it didn’t incl. CH
Environmental Defence Canada v. Canada (Minister of Fisheries & Oceans), 2009 FC (“Nooksack Dace
case”)
Issue
1. What is the correct
interp. of s. 41(1)(c) and
(c.1), esp. def. of
“habitat” (does it incl. 2
features:
(1) defined geographic
area; and (2) physical &
biological attributes of
that area)?
Notes
Reasoning/Ratio (per Campbell, J.)
Applicants: Min. knowingly failed to follow mandatory reqts of s. 41(1)(c) (Final RS
provision); statements re. CH in Final RS was contrary to law; specifically:
1. Each of reqts listed in s. 41(1) must be met, incl. (c) and (c.1)  Ct: yes, provisions
of s. 41 mandatory, as confirmed by Zinn, J. in Sage Grouse: “no discretion vested in
Min, in id’g CH under SARA”
2. (c) and (c.1) and conjunctive duties (i.e. both need to be fulfilled, not either/or)  Ct:
yes; also, reqs Min. not to disregard, ignore or remove reliable info; determinations under
this provision subject to JR on SOR of reasonableness
3. CH requires det’g and stating habitat’s features & providing geospatial delineation of
its location  Ct: “location is inextricably linked to its special identifiable features and
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“Test case” for SARA
interpretation; Ct:
“bringing present
Application was
absolutely necessary…
creation and application
of policy by Min. in clear
contravention of law, and
reluctance to be held
accountable for failure to
follow law”; case about
ROL as described by
LaBel & Bastarache in
Dunsmuir
Scathing judgment re.
Min’s actions
Law & science working
together can ensure laws
passed in Parl. aren’t
thwarted in
implementation
incl. its special identifiable features”; Min’s textual analysis too narrow for broad,
purposive approach that’s reqd
4. “To the extent possible” in s. 41(1)(c) reqs identifying as much CH as possible, in as
much detail as possible  Ct: take Zinn, J.’s judgment fr Sage Grouse. “Min must ID as
much CH as is possible to ID at that time, even if all of it cannot be ID’d and to do so
based on the best info then avail”
5. “Based on the best avail. info” means the info in existence not the best possible info
that can be acquired in future
Applicants: SARA should be construed as conforming to values/ principles of Convention;
note: no allegation of bad faith
SOR is correctness
Stat int. req’s modern approach (contextual, textual, purposive analysis)
s. 38 is the precautionary principle codified, meeting Cda’s commitments to UN
Convention on the Conservation of Biological Diversity  s. 38 is “mandatory interpretative
principle” (note: does mention “cost-effective measures” but clear about not postponing
measures due to lack of scientific certainty)
Stage 1: RS | Stage 2: Action Planning *only at this stage that socio-econ. factors can be
considered (this is error of law)
Decision: Policy Director DFO direction (to remove CH fr RS) and Dep. Min’s approval of
this are contrary to law  Min. failed to meet mandatory reqts of s. 41(1)(c) in Final RS;
totality of conduct fundamentally inconsistent w precautionary principle
Facts: Nooksack dace (stream minnow) listed as endangered on SARA Sched 1 (facing imminent extirpation) when Act
came into force, so RS deadline is 3 yrs; listing auto. triggers prohibitions against harm (s. 32), protections for residence
(s. 33) & reqt for RS and action planning (ss. 47-64); RS process: draft RS placed in public registry for comments for 60
days; applicants submitted comments noting that RS fails to id CH even though it’s known; 1 yr after due date, Final RS
posted; Recovery Team could and did identify CH but upon direction fr Min., Team removed identif’n of Critical
habitat fr RS and inserted into separate doc (which wasn’t posted to Public Registry)
Tollefson: one thing Campbell, J. did that’s vulnerable to appeal are his findings w re. to international law
Critical Habitat Designation, Recovery Strategies & Actions Plans, pp 682 – 708
Mentioned in class: Environmental petition process: if you have a q that would be w/in jurisdiction of 1+ ministries, can
ask q directly to Minister, who must answer (quality of answer not guaranteed, but will be part of public record)
 Alternative to ATIP process (Fed FOI process)
Georgia Straight Alliance v. Canada (Minister of Fisheries & Oceans), 2010 FCA “Consolidated Orcas”
Issue
1. What is the SOR?
Reasoning/Ratio, per Zinn, J.
Re #1: essentially issue of stat. interp., so correctness (agrees w FC)
2. How to interpret
SARA s. 58; did Min.
err in relying on
Fisheries Act & its Regs
in making Killer
Whales Protection
Statement?
Notes
SARA Protection
Statements (relying on
other leg) & Protection
Orders – via s. 58(5),
w/in 180 days after RS;
note: only applies to
“fed. species” (marine,
Min. arg: Parl. intended that he be allowed flexibility to provide compulsory protection
o Ct: if accepted, compulsory non-discretionary protection scheme of SARA would be
replaced w discretionary management scheme of Fisheries Act
o Reinforced by textual and contextual analysis – surely PS and PO must have same obj. to
avoid destruction of ID’d CH of listed species through any means, incl. activities authorized
through discretionary permits/licenses
 only legally protected if other Act prevents destruction through legally enforceable
means, not subject to Ministerial discretion
Min arg re. s. 35 Fisheries Act (HADD provision): though discretion broad, where Min. relies
on Fisheries Act to meet reqts of SARA, reliance will guide exercise of discretion to ensure
CH remains protected  Ct: doesn’t explain how this intent can be legally enforced in future if
Min. changes mind; also doesn’t bind Min’s successors
Re. s. 36 Fisheries Act (deleterious substances): allows for deposit under conditions authorized
by Regs (notably, Metal Mining Effluent Regs and Pulp and Paper Effluent Regs)  Ct:
56
migratory birds, etc.)
doesn’t allow for waiver through Min. issuing license/permit; non-discretionary & legally
enforceable, fundamentally different than s. 35 which allows for discretion
 in appropriate circumstances, s. 36 + its Regs may afford species legal protection mandated
by s. 58 of SARA, but no evidence here (differs fr FC on this point, but same outcome)
Protection Statement
cannot be nonenforceable leg. subject
to Min. discretion, but
Decision: Upholds FC’s judgment, except for declaration that s. 36 of Fisheries Act barred fr
can rely on Regs (as
inclusion in PS/PO under s. 58 of SARA (see last para. above)
they’re enforceable)
Background: Under SARA, when species listed in Sched 1, Min. must prepare RS w/in specified time (prepared w
stakeholders, public consultations)  req. 1+ Action Plans based on RS  final RS [either (1) Protection Statement,
referring to other laws, OR (2) Protection Order] – often will try to do (1) PS; note: “law” doesn’t incl. policy/guidelines
Facts: (2001) Southern resident orcas endangered, Northern resident threatened; (2006) final draft RS (after heated
disputes b/w Recovery Team Scientists & DFO re. how critical habitat def’d); w/in 180 days, Min. had to release PS or
PO  released “Killer Whales Protection Statement” (chose (2) PS route), incl. geophysical attributes only  but some
of most important elements of critical habitat left w/out protection (incl. acoustic degradation, chem/bio contamination,
diminished prey)  PS said these would be dealt w through “leg. and policy tools” and not under SARA)
Judicial History: (Russell, J. at FC):
1. Judicial Review #1 at FC: Resp. argued Min. couldn’t resort to non-binding policy, prospective leg. or ministerial
discretion in Protection Statement  before JR was heard, Min. reversed & issued PO
2. Judicial Review at FC of Protective Order  two JR’s consolidated & heard as one; (a) Scope of “critical habitat”
already decided in Nooksack Dace case (both the location & components of CH contemplated by SARA); (b) Min. arg’d:
PO wasn’t “decision” subject to JR, but rather a “regulation” immune fr JR  Ct: no privative clause, clearly justiciable;
(c) Ct decided to hear issue of PS regardless of Min. reversing & issuing PO (applied Borowski factors)  Russell, J.
decided that through purposive reading of pertinent provisions of SARA, Parl. sought to limit discretion where protection
of endangered species/habitat at issue (and Fisheries Act subject to discretion)
Adam v. Canada (Minister of the Environment), 2011, FC
SARA Emergency order provisions:
80. (1) The Governor in Council may, on the recommendation of the competent minister, make an emergency order to
provide for the protection of a listed wildlife species.
Obligation to make recommendation
(2) The competent minister must make [less discretionary, more objective] the recommendation if he or she is of the opinion
[discretionary] that the species faces imminent threats to its survival or recovery.
Issue
Reasoning/Ratio, per Crampton, J.
1. Did Minister err in
SOR: interpreting d/maker’s enabling/home statute accorded deference (so reasonableness
standard), as per Dunsmuir  however, re. FN issues, overridden by const considerations, so
interpreting Emerg
Order provision (s.
subject to correctness (all other issues subject to reasonableness)
80(2) of SARA)?
Note: contradiction w FCA’s Consolidated Orcas case where Ct says Min. isn’t expert in the
area, even though was interpreting home statute (SARA)
2. Should mandamus
be granted (make
Re #1: Ct: Min. clearly erred in reaching decision when stated FN treaty rights & honour of
Minister reco EO)?
Crown weren’t factors in decision re. EO reco; not saying decision would have been different,
[Tollefson]: most
just saying there was error
interventionist
Apps ask Ct to endorse list of propositions (p. 701)  Ct accepts a few: (1) mandatory duty in
approach, v. diff. to get
s. 80(2) only triggered when Min. “of the opinion”; (2) s. 80(1) broad enough to permit GIC to
make EO on reco fr Min. outside of s. 80(2) situations, but no stat. duty to do so; (3) Min.
3. Did Minister err in
doesn’t need to consider only best science but also legal advice; (4) Min. can take “short period
refusing to reco EO by
of time” following Applicants’ request to act under s. 80; (5) language doesn’t imply that EO
failing to consider
must be made every time any species/sub-species faces threat in only a part of habitat; (6)
relevant factors?
less likely threats are to materialize, less weight accorded in Min.’s assessment
(seeking declaration)
App arg: only reasonable interpretation of “survival” or “recovery” is conserving/recovering all
4. Should declaration be herds to self-sustaining levels throughout their current ranges  Ct: would be anomalous
made re. contravening s. result where v. small herd would req. EO if threatened in small area of prov., would misalign w
42(2) by not posting
leg. intent to give Min. discretion, evidenced by words “of the opinion”
RS?
57
Notes
SARA s. 80
Emergency Orders
[Tollefson]: Good time
to be govt lawyer b/c
likely get
reasonableness standard
even when weak case
App arg: based on facts, not reasonably open to Min. to reach opinion that “no imminent
threats to natural survival” (list facts on p. 703)  Ct: acknowledges not immediately apparent
how Min. could have concluded no imminent threats, but didn’t give reasons; proper approach
to set aside Min’s decision as wasn’t “justifiable, transparent, intelligible” (as per Dunsmuir)
Note: “imminent threats to its survival or recovery” wasn’t def’d by counsel, so Ct will defer
det’g this to another day
Re #2: App’s concede that decision to reco EO to GIC is discretionary  Ct: mandamus not
available to compel exercise of discretion in particular way; proper approach is set aside
decision & ask for reasons
Re #3: SOR: this is q of mixed fact/law so reasonableness standard; relevant factors
(according to Apps): (1) FN’s treaty rights  Ct: Min. didn’t consider; (2) Min’s ongoing
breach to prepare RS w/in time period mandated  considered; (3) Purposes of SARA  not
considered, but doesn’t matter as what was considered wasn’t inconsistent w purposes SARA;
(4) Draft Recovery Policies’ obj.’s  considered; (5) Best avail. science  considered
 Ct: despite evidence, made contradictory conclusion & reasons given “do not enable me to
conduct meaningful review of Decision” (conclusion came “out of the blue”)
Re #4: App arg: SARA s. 38 codifies “precautionary principle” & enacted partly to satisfy
Cda’s obligations under 1992 UN Convention on Biological Diversity  Ct: no suggestion of
bad faith on behalf of govt, & they committed to RS in “summer of 2011”, so will defer
declaration of unlawfulness until Sept 1, 2011
Decision: Min.’s decision quashed/set aside (no mandamus), remitted back for reconsideration
according to FC judgment; Ct defers declaration (issue 3) Sept 1, 2011
Facts: App. FN’s & ENGO’s attempted to get MOE to finalize RS for boreal caribou (NE Alberta), issue Emerg Order
under SARA s. 80(2); (2002) general pop. woodland caribou designated as “threatened”; (2008) scientific review by
Enviro Cda det’d “not self-sustaining”; (2009) draft Species at Risk Policies describe 3 factors Minister will consider in
forming his “opinion” under s. 80(2); (2010) FN’s & ENGO’s separately wrote to MOE requesting he reco to GIC to
make Emerg. Order  each filed applications in Ct, they were consolidated into one JR; Min. decision: “no imminent
threats to survival”; claims threats to “recovery” less straightforward than those to survival as will be def’d in National RS
which isn’t finalized yet, but science needed has been ID’d & RS will be issued by “Summer of 2011” (even though due
in 2007); Provs. resp. for mng’g terrestrial species on Prov. land & even though Alb’s RS lacking and would affect other
jurisdictions’ caribou, MB & Eastern Cda caribou healthy so could allow recovery
Note: Boreal caribou: iconic species in Cda (in Enbridge, looked at their cousins, Southern Mountain caribou)
Future cases’ potential arg: in face of scientific evidence, not open to Min. to say “I don’t agree”; may be obligation on Min.
to embrace unless can provide scientific evidence to contrary [haven’t seen one of these case win yet]
Prohibition on Harm to species, pp 709-713
Takings provisions carefully designed to allow broad discretion to Min. (Min. to form opinion and make reco. to Cabinet)
Have been no “safety net orders” made, though there have been applications
Tollefson note: troubling when combine elusive nature of safety net orders, and that only Fed. species deserving of Fed.
protection and the rest will be protected by the Provs.
o However, at least in terms of Fed. species, Cts have made the best of this by pushing on this designation of
critical habitat (Sage Grouse, Consolidated Orcas, Nooksack Dace) – so there’s at least some sort of protection
order or protection statement which has effect of legally conferring protection on those species
 haven’t had that many PO’s made (still fighting over what these PO’s should include)
Kate Smallwood, A Guide to Canada’s Species at Risk Act (Sierra Legal Defence Fund, 2003)
 s. 32: “takings” prohibitions (cannot be killed, harmed, traded); Note: no judicial interpretation of meaning of word
“take” and first conviction not until in 2012, so we’ll look to US where significant body of law dvp’d under ESA
(see Babbitt case, below)
 s. 33: “residences” cannot be damaged or destroyed; “residence” not biological/scientific concept, but artificial term
to restrict legal protection to min. part of habitat (“dwelling place”)
 scope ltd to areas of fed. jurisdiction (ntl park, fed. agri. lands, Reserves, military bases, airports, post offices),
unless s. 61 “Safety net” invoked, to extend protection to areas of prov. jurisdiction (MOE must make reco if he’s of
58
opinion that… laws of Prov. don’t effectively protect CH  currently unclear how fed. govt will det. this)
o Order made under s. 61(2) lasts for 5 yrs, unless GIC renews it by order (s. 61(5); if MOE considers no longer
necessary, must reco. that order be repealed
 s. 58 protects Critical Habitat, incl. larger def. of habitat than s. 33 (above) but isn’t invoked until RS in place; s.
58(5) gives 6-mo. time limit to issue PS or PO
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, US 1995
Issue
Resp. argues Congress
didn’t intend “take” to
incl. habitat modification
Notes
U.S. analogy to SARA
(interpreted “take” in
ESA v. broadly)
Reasoning/Ratio (per Campbell, J.)
1. Ordinary understanding of word “harm” is cause hurt, damage, injure (in context of ESA,
encompasses habitat modification)
2. Broad purpose of ESA
3. Congress authorized Secretary to issue permits for takings that would otherwise be
prohibited “in exercise of lawful activity” suggests indirect in addition to direct takings
(undermines Resp. arg that means only accidentally killing endangered animals during
regular hunting)
Decision: habitat modification incl. in ambit of “taking” that’s prohibited by ESA
Facts: Spotted owl designated as endangered; ESA gives Secretary power to make Regs; Secretary extended “taking any
endangered species” to incl. habitat modification where it results in killing or injuring wildlife (def. of “take” in Act is
basket clause that includes “harm”; harm def’d in Reg to incl. habitat modification)
Tollefson: interesting US tradition for protecting private property hasn’t manifested itself here (would expect an elaborate
compensation system for property injured from decisions made under ESA, but hasn’t happened; in Cda, when SARA
initially drafted there was placeholder for reg. system to be brought in that would deal w compensation to those adversely
affected (i.e. farmers, lrg landowners in Western Canada) but nothing has come of this (no Reg. passed)
Species Protection as Governance Issue, pp 716-731
Biodiversity protection much more complicated than setting air/water targets, etc.
A. Dan Tarlock, “Biodiversity Federalism”, 1995: [relevant also in Climate Change section]
2 branches of enviro.
protection policy
Difficulties
1. Risk Minimization
2. Biodiversity Protection
No reliable way to measure risks
Acceptance
Widely accepted as legit public
policy for 25 yrs
Legitimacy & implementation (more
difficult)
Emerged as primary obj. of both US &
intl govts
Biodiversity protection:
 Site-specific nature of problems means fed. policy can’t be applied across the board effectively
 Chief threat = habitat loss
 So objective is habitat conservation & protection, rather than regulating industries through technology
 Federalism frustrates biodiversity protection by:
1. Premised on optimal reg. balance (which can frustrate necessary inter-govt cooperation)
2. No uniform standards that can realistically be applied to such diff. states (Alaska + Arizona, for ex.)
3. Fed govt must rely on powers usually vested in prov./local govt
 Lrg threat to achieving obj. is local resistance that may undermine national efforts (fed. mandates seen as intrusions
on local sovereignty)
 Biodiversity doesn’t mesh w federalism, b/c:
1. Political boundaries don’t match w ecosystem boundaries
2. Conflicts among diff. fed agency mandates
3. Constitutional values (property, individual interests) difficult to adapt to biodiversity protection
4. Fed. jurisprudence neutral w re. to biodiversity maintenance (SC decisions likely to hinder) [note: prior to the
Oldman River, Hydro-Quebec]
5. Demands of biodiversity protection exceeds fed ability to achieve w/out state & local cooperation
Species Protection Initiatives at Provincial Level
1996 National Accord for the Protection of Species at Risk stood for cooperative approach to species protection (Provs
taking lead role, Feds stepping in for Emerg & safety net orders)
59
14 principles (list p. 719): independent assessment, immediate protection, timeliness, monitoring, preventative measures…
Ecojustice, Failure to Protect: Grading Canada’s Species at Risk Laws, 2012
 Judged efficacy of species protection on 4 elements: (1) listing process, (2) “take” protection, (3) habitat protection,
(4) recovery planning
 BC/AB failed as don’t have dedicated SAR leg.
 Even govts w strong laws (ONT and Cda) weakening them
 Op for Fed. govt to take leadership role (Provs can’t as don’t have necessary tools to recover species on their own,
esp. if crossing jurisdictional boundaries)
SARA and Provincial Land Resource Development Decision-making
How is SARA having an impact on prov. decisions re. licensing/ permitting resource activities?
0707814 BC Ltd. v. BC (Assistant Regional Water Manager), (2008, BC EAB)
Issue
Dvpr arg: If species wouldn’t
survive anyway (and Dvpr
contends it wouldn’t), water
license should be approved
Reasoning/Ratio
Magnitude/gravity of harm at extreme end of scale; Capturing + relocating species not
feasible option; Predicting whether species will persist is not exercise in certainties
(“best guess” based on best avail science)
Notes
BC has no dedicated Prov.
SAR law [compare w next case]
Re. need for further study, Panel says this isn’t right case – no q that threats to these
species’ survival already exists at this site (“property is an oasis in an urban
landscape”)
 Pressures simply too overwhelming for Panel to have any confidence that, w/out
protection proposed by the App, any of the species reasonably likely to persist; Water
Act not meant to deal w land issues; Ecosystem no longer one of “high value”; species’
habitat being degraded, more to come; also, City’s not doing anything
Demonstrates little support for
interpreting Prov. laws to align/
support Fed. laws (i.e. Water
Decision: Application allowed, dvpt to proceed
Act to support SARA)
Facts: Prov. Water Approvals Manager refused application for dvp’r to infill wetland in ravine near suburban area (would
destroy habitat for SAR (frog & forestsnail listed in SARA as threatened/endangered); Dvp’r resubmitted  refused
Guelph (City) v. Soltys, (2009, Ont SCJ)
Issue
1. Pl brings motion for
injunction to restrain Ds fr
trespassing on lands,
impeding construction [D
arg: if granted, Pls
themselves should be
enjoined fr engaging in any
construction interfering w
habitat for reasonable
period (duration of
breeding season)]
2. D argues in alt, separate
motion for injunction to
restrain Pl’s fr continuing
construction (same terms
as above)
*Note: public interest
standing must be est’d
Notes
Reasoning/Ratio (per Gray, J.)
Re #1: test for interlocutory injunction fr RJR MacDonald: (a) serious issue to be tried; (b)
pls will suffer irreparable harm if injunction not granted; (c) balance of convenience favours
pls
+ Pl argues b) & c) less important when landowner (prima facie entitled to injunction when
trespass occurs)  Ct: D’s have no right to take matters into their own hands, so Pl’s
requested injunction against D trespassers issued
Re #2: D relies on “precautionary principle” – currently unknown where breeding
grounds are, but this isn’t sufficient to decline to take steps to avoid potential
destruction/interference w habitat
Note: Public interest standing est’d for this limited action
Applying test: (a) serious issue based on preamble of ESA (habitat = geographical + nongeographic area, but when reg. not issued yet, area is undef’d; Salamander listed as
threatened species; ESA prohibits damaging habitat but suspends that prohibition until reg.
issued (subject only to Min. issuing stop work order)  Min. in better position to issue
order than Ct and enforcement mechanisms conferred to Min. under ESA is exclusive, Ct
can’t issue orders in absence of Min. having done so
BUT exception when Ct asked to enjoin an activity until the stat. tribunal can exercise that
stat. d/making power
There’s no evidence that Min. even contemplated making order
60
ONT has dedicated Prov.
ESA as of 2007 [compare
w previous case]
D’s made out 3-part test for injunction (balance of convenience favours D’s for injunction
for short duration) “… if it turns out that the project must be delayed for a year, so be it.
The policies enshrined in the ESA, 2007, must prevail in these circumstances”
Ont ESA prevails over
Decision: Pl’s requested injunction against D trespassers issued; D’s requested injunction
dvpr’s project being
stopping work granted for 30 days to allow Minister to make reg. re. salamander habitat (or
slightly delayed
refuse to)
Facts: City of Guelph proposing dvpt of Hanlon Creek Business Park; has all necessary permits/approvals to move fwd w
Phase 1, $20 mil spent on project so far; Dr. Bogart testified w re. to dead Jefferson Salamander found on site (vs. Cityhired consultant says salamander doesn’t exist in that area); NRCan reco’s that dvpt of rd that crosses creek be delayed
due to unknown location of salamander breeding pts  City has taken no steps to stop work (no formal approval req’d &
no power to issue stop work order under ESA s. 27 b/c Reg. hadn’t been promulgated def’g area of habitat); Land Is More
Important Than Sprawl (LIMITS) oppose dvpt & entered land to restrain (D is member of LIMITS)
The Ontario Endangered Species Act, 2007








Strongest law of its kind Cda
Ont has 1/3 of Cda’s total endangered species
However, govt already exempted forestry industry fr reg.  woodland caribou remain at risk
Science-based mandatory listing process (by independent agency)
Strong mandatory provisions re. habitat designation & recovery strategies
Minister must designate critical habitat for listed species by reg.
Broad takings provisions (balancing traditional use rights by FN by way of exemptions)
Note: silent w re. to compensation for landowners
Emerging Perspectives on Species and Biodiversity Protection, pp 731-738
Holly Doremus, “Biodiversity and the Challenge of Saving the Ordinary”, 2002
 Protection of biodiversity enshrined in law & policy, recently in intl law (Convention on Biological Diversity)
Special vs. Ordinary
 We must focus the law & public on ordinary nature rather than merely obviously special or unique aspects
 Only most extraordinary species helped by ESA (those w significant public appeal or tenacious human advocates)
 Suggestions to focus on:
o Indicator species: reflect health of ecosystem as whole
o Keystone species: contributors to community structure
o Umbrella species: extremely lrg ranges (would guarantee protection of many smaller species)
o Hotspots: locations w high levels of biodiversity
 Protection of the special hasn’t proven effective for saving ordinary
… Human beings not wired to care about, or even notice, ordinary – easier to gather support to save whales, than
to save nature as a whole/biodiversity
Landowners:
 Assume they’re free to use land any way they want as long as don’t injure others
 Reg. controls on private land use essential to biodiversity protection (but huge institutional barriers)
 No “magic bullet” biodiversity law, but focus on patchwork of fed, state, local law
o Incl. reg. activities that predictably pose threat to biodiversity (most already subject to some kind of reg., so just
ensure biodiversity considerations adequately factored into existing reg. schemes
 multi-jurisdictional regional plans needed (not isolated land use reg)
“Tough challenge to build political support to limit human actions, saving some room on the planet for nature. That requires
the development and maintenance of emotional connections to ordinary nature.”
Isabelle Deguise & Jeremy Kerr, “Protected Areas and Prospects for Endangered Species Conservation in
Canada” (2006)
 Habitat loss is primary cause of species endangerment; caused by:
o Land-use conversion to agriculture
o Introduced species
o Urbanization
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o Overhunting
 Reserve networks (protected areas) one of leading strategies for reducing extinction rates, but not mtg their potential
 Significant proportion of the world’s remaining wilderness is in Cda
o Mean reserve size in Cda declined sharply as #’s endangered species per eco-zone increased
o Areas w highest diversity now dominated by agri land uses
o Cda’s SARA provides little additional habitat protection in areas w largest #’s endangered species, b/c: (1)
endangered species concentrated in areas w extensive human land use, clearly inhibiting reserve est’t or
expansion; (2) protected areas haven’t been est’d to protect biodiversity, like Ntl Parks for “enjoyment of Cdns”)
 Protected area networks unlikely to provide effective endangered species protection in Cda
Suggestions:
o Tax incentives, easements for private landowners
o Importance of distinguishing b/w inclusiveness & effectiveness
Climate Change
Climate Change and Tort Law, pp 747-761
D. Curran, “Climate Change Backgrounder”, UVic ELC, 2007
4 main categories of tort actions:
1. Against public agencies for acts/omissions that contribute to climate change
2. Against public agencies to req. consideration of climate change impacts in d/making
**3. (civil lawsuits) against private entities that emit GHG (usually nuisance, negligence)
4. Against public agencies reg. GHG emissions by reg’t entities
** Greatest potential for ripple effect through corp. sector - but signfcnt legal/science hurdles to overcome in mass tort litig’n
Duty of Care
 Negligence: must exercise duty of care twd those foreseeably at risk fr their behaviour (doesn’t extend to those at
risk by secondary impacts fr neg. activity)  how big is the zone of foreseeable risk?
o Foreseeability inc. as scientific understanding of impact of climate change has increased
 However, Cts may decline to impose duty of care for policy reasons
 Public nuisance: Pls have special injury fr D’s action that interferes w right common to public (health, safety,
morality, comfort, convenience); req. balancing test of reasonableness of D’s activity & how activity conforms
to industry/sectoral norms
o Note: Cdn cts req. strict adherence to showing injury diff. in kind & degree fr other members of public
(US cts more lenient)
o Defence of stat. authority: where leg. exists. D’s use defence to say Leg. sanctioned a range of activities
Leg. could have contemplated
 Private nuisance: at what level does the conduct become intentional and the interference unreasonable where the
harm (enviro., economic and social) outweighs the benefit (economic and social)?
o Hunter & Salzman: relative risk-utility balance of CC activities shifting… towards finding of liability
o Next generation of tort litigation may see more nuanced approach to naming D’s
Causation
 “But for” test: won’t work w multiple emitters over a century (contribution by any one group insignificant, or at
least well below 50% reqt for liability under BF test)
 Cdn test “material contribution”: little guidance, but clear that BF to be applied in “all but most exceptional of
cases”, when 2 reqts met:
o 1. Impossible for Pl to prove D’s neg. caused Pl’s injury using BF test
o 2. D breached duty of care owed to Pl, exposing Pl to unreasonable risk of injury, that injury
materialized (i.e. injury must fall w/in ambit of risk created by D’s breach)
 Market-share based theory: found favour in US, recently approved in English HL, stat. adopted in BC leg,
referred to at SCC in passing
Remedies: Apportionment of Liability
 % of mkt share corp holds in particular industry will be amount of damage for which held liable
 In BC, D’s are jointly & severally liable under Negligence Act
Discussion

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Cda following British system of costs has neg. impacted Cdn public interest litigation
Climate Change Tort Litigation in the US: A Snapshot
2 notable case examples:
 Connecticut v. AE Power Co.: filed against group coal energy production co’s operating in 8 states (dismissed
on prelim. motion)  now up to SC
 California v. GM Corp: filed against group of major auto mnftrs (still before Cts)
Nature Village of Kivalina v. ExxonMobil Corp, 2009
Issue
Threshold q: does
Ct have subject
matter
jurisdiction over
claim for CL
nuisance?
Political q
doctrine: would
req Ct to make
policy
determinations;
polycentric
interests lead to
inherently
political q’s
Notes
Thought to have
chance of success
Denied leave to
appeal to US SC
this yr (even
though AEP was
allowed)
Main theme is
leg/political
nature of issues
Reasoning/Ratio
Re #2: political q doctrine: species of separation of powers doctrine, says certain q’s political as
opposed to legal; Baker v. Carr test:
i. Involve issues committed by text of Constitution to coordinate branch of gvt?
**ii. Demand ct move beyond areas of judicial expertise? (Cts must ask if have legal tools to reach
ruling that’s “principled, rational, based upon reasoned distinctions”
Pl arg 1: same as all nuisance cases (def: significant interference w public heath, safety, peace,
comfort, convenience, conduct continuing in nature, produced permanent or long-lasting effect)
Ct adds: must also incl. balancing of benefit vs. harm; test is “whether RPs generally, looking at the
whole situation impartially and objectively, would consider it unreasonable”
Applied: weigh energy-producing alts avail. in past; principle purpose of D’s conduct, social value
in that purpose
Pl arg 2: long, prior cases on air/water pollution supports (i.e. Connecticut v. AE Power: rejected Ds’
reliance on uncertainties re. effect of GHG, “Fed cts have successfully adjudicated complex CL
nuisance cases for over a century”)
Applied: may provide guidance in novel cases, this isn’t one; distinguished as those cases involved
discrete # polluters, causing specific injury to specific area  here, GHG emissions fr innumerable
sources located throughout world & affecting entire planet/atmosphere
Ct: Pls not providing any guidance as to which judicially discoverable standards to employ; seeks to
impose liability on scale unlike any prior enviro. case cited
 2nd factor precludes judicial consideration of Pl’s fed. nuisance claim
**iii. Do prudential considerations counsel against judicial intervention?  policy
Ct adds: this factor triggered when “ct must make policy judgment of leg. nature rather than resolving
dispute through legal/factual analysis
Pl arg: b/c not seeking injunctive relief, no need for Ct to retroactively det. emission limits that
should have been imposed
Ct: same faulty logic as above (look at reasonableness of harm w/out looking at conduct) 
regardless of relief sought, harm must be balanced w utility of conduct
Reqs judiciary to make policy decision about who should bear cost of global warming (virtually
everyone on earth responsible on some level)
Allocation of fault and cost of global warming matter appropriately left for det’n by exec or leg.
branch
 3rd factor militates in favour of dismissal
Decision: D’s motion to dismiss granted; appealed to 9th circuit, dismissed
Facts: as result of global warming, coastal storm waves and surges affect coastal village on barrier reef to pt that needs to
relocate (specific effect in specific area); science pretty bullet-proof (self-gov’g Indigenous community, w/in few yrs will
be underwater); filed complain alleging: (1) Fed CL: Public nuisance, (2) State law: private & public nuisance, (3) Civil
conspiracy (big oil mnftrs cahoots to keep CC under wraps - if claim allowed to proceed, permit broad disclosure; *same
tactic used in tobacco litigation), (4) Concert of Action; D’s would be jointly & severally liable; Pls request damages in
form of cost of relocation ($95 – 400 million); do not request injunction
JH: D’s bring motion to dismiss
Tollefson: Why not bring trade practices claim when co. alleges it’s carbon neutral (and it’s not)  esp. good case to bring if
good facts (could start to build up a jurisprudence in this area, incremental approach)
63
R. Trent Taylor, “The Death of Enviro. Common Law?: The Ninth Circuit’s Decision in Native Village of Kivalina v.
ExxonMobil Corp.”, 2012
Summary:
 Looks at AEP v. Connecticut and Kivalina decisions for CL climate cases in US; effectively ends Fed. CL, &
grave implications for enviro. CL more generally
Decision
 Kivalina 9th Circuit appeal Ct: dismissed case on rarely invoked doctrine of displacement (when Fed. law speaks
directly to issue, Fed CL found to be displaced, i.e. “Congress has directly addressed issue of domestic GHG
emissions fr stationary sources” & even though seeking damages, not injunction, remedy not relevant to
application of displacement doctrine)
o Pl arg: no fed. statute re. monetary damages as result of climate change
 Ct: if fed. CL cause of action has been displaced by leg., means “field has been made subject of
comprehensive leg. by Congress” (AEP extinguished Kivalina’s fed. CL of nuisance damages action,
now must rest w Leg/Exec action)
Concurrence
2 main reasons:
(1) tension in SC on whether displacement for injunctive relief necessarily calls for displacement of damages
claim (maj. doesn’t acknowledge tension)  though comes up w same conclusion (by supplying fed.
remedy Congress chose not to, wouldn’t be “filling a gap” but offering alternate reg. scheme – not ok)
(2) said Kivalina lacked standing
Future Outlook
 Pls have 2 options: appeal to full 9th circuit or ask for certiorari to SC (AEP got certiorari so it’s possible) [note:
Pls have since been denied leave to SC]
Significance
1. Another nail in the coffin of climate change litigation: AEP left door slightly ajar, Kivalina shuts it almost
completely; AEP only sought injunctive relief  now only other basis for CC suits would be state CL
2. No further need apparent for Fed CL of Public Nuisance: takes doctrine of displacement further than ever
3. Death of Enviro law more generally? so thoroughly one-sided on displacement issue that cannot help but
strengthen preemption defence also
o Undercurrent of enviro. law generally: to what extent should any enviro. CL tort claims (state or fed.) be
permitted when every conceivable matter legislated on?
Climate Change & the Division of Powers, pp 761-776
Shi-Ling Hsu & Robin Elliot, “Regulating Greenhouse Gases in Cda: Constitutional & Policy Dimensions”,
2008
Summary: division of powers w re. to CC
3 gen. observations about manner which SCC approached reviewing, on federalism grounds, leg. intended to protect enviro:
1. SCC made clear protecting enviro. doesn’t rest w either Fed or Prov. legs (upheld leg protecting physical enviro. fr
both levels govt)
2. SCC upheld Fed leg. under POGG (Zellerbach) & Crim law (Hydro-QB) even if pushed doctrinal envelope; SCC
willing to afford Feds broad authority to protect physical enviro.; high degree sympathy for goal of enviro. protection
3. Power to enact leg of obligations undertaken as part of intl treaty/convention doesn’t fall to Parl. simply b/c leg.
enacted for that purpose (goes to level of govt resp. for that subject matter); i.e. leg to fulfill Kyoto obligations
Prov. jurisdiction
a) Carbon taxes: s. 92(2) “direct taxation w/in Prov. to raise revenue for Prov. purposes” (only potential challenge
would be on “revenue for Prov. purposes” part if revenue-neutral scheme like in BC – but authors predict challenge
would fail b/c weaknesses outweigh strengths)
b) Cap and Trade/Intensity-based trading: validity depends on entities to which regime applied (s. 92(5),(10),(13), s.
92A likely ok, i.e. O&G, mntfr, mining, forestry, construction, intraprov. truck/bus lines)
 Applying to any fed. reg’t entities, likely to be found invalid, at least to extent of inconsistency
 Necessarily incidental doctrine: would have to list fed. reg’t industry specifically in leg, so industry
could have target to attack; Ct asks how much leg. encroaches on fed. jurisdiction (would likely fail)
 However, BC’s plan to engage in region-wide trading program (w MB), prob. fine
c) Command and control regimes: applying only to prov. reg’t industries, likely ok; fed. reg’t industries, prob. not
Fed. jurisdiction
64
a) Carbon tax: Fed. govt v. broad power to levy taxes (s. 91(3) “raising of money by any mode/system taxation”); no
territorial limit or on kind; challenge if revenue-neutral scheme prob. wouldn’t succeed same reasons as Prov.
b) Cap and Trade/Intensity-based trading regimes: if applied only to fed. industries, constitutionally sound; if applied
to Prov. industries as well….?
i. Crim law: highly reg. character of C&T appears to preclude (but Hydro-QB upheld toxic substance
provisions of CEPA as “crim law” & they were regulatory)
Args against: (1) emission of carbon not direct/immediate harm norm. associated w crim law; (2)
allows co’s to buy/sell right to cause v. enviro. harm at which it is aimed; (3) diff. to label C&T
regime as “prohibitory” (reqt of crim law) – would arguably broaden the limits of crim law greatly
 Unlikely to be upheld, as not “prehistory” (but if found prohibition, public purpose & penalty reqts met)
ii. National concern branch of POGG: allows Feds to leg. on prov. head of power when matters
“unquestionably of Cdn interest & importance”
Militates twd: may be enacted in furtherance of Kyoto, predominantly extra-prov. character, prov.
inability test, etc.
Militates against: Cdn GHG only 2% of global total, & lack “singleness, distinctiveness,
indivisibility” b/c arguably simply combo of Fed matter (GHG reg. of Fed industries) + Prov. matter
(GHG reg. of Prov. industries); also, scale of impact on Prov. jurisdiction high (esp. AB for ex), &
provs would be precluded fr regulating on Prov. industries which Cts wouldn’t look on favourably
 Unlikely Cts would find matter of POGG National Concern
iii. Emergency branch of POGG:
Summary: existing emergs or prevention; can incl. econ.; Cts shouldn’t 2nd-guess leg’s finding of
emerg (as long as “rational basis”); leg. must be temp. duration; leg. must indicate in preamble what
emerg is; likely doesn’t preclude the Provs. fr legislating
 Likely that all reqts could be met, only for C&T option (not Intensity-based trading as can allow
emissions to grow over time), much more attractive option than Ntl Concerns branch
c) Command and control regime: if limited to Fed. industries would be upheld; as for application to Prov. industries,
same analysis as for C&T above (Crim – NO though a bit stronger arg; Ntl Concern – NO; Emerg – YES)
Summary: “both orders of govt have relativ’y broad array of options avail. to them under Const’n to deal w GHG emissions”
Alexis Belanger, “Cdn Federalism in the Context of Combating Climate Change”, 2011
Introduction:
Probs w centralization: (1) Prov policies viewed as fragmented patchwork; (2) Fed/prov govts caught in trap of joint
d/making; (3) Current system packed w useless, costly structural duplications
i.e. Fed govt didn’t pay attention to div of powers & attempted to deal w 1970’s energy crisis w Ntl program (failure)
 However, many think true federalism could be asset in battle against CC
Past decade, Fed approach has been assumption that every Prov has a price & can be bought; however, “eco-Trust
program” has allocated $1.5 bil to provs who have enacted initiatives (i.e. QB’s royalties on gas’s carbon content)
Note: Feds seeking to expand control outside jurisdiction, while not maintaining interprov. railways (matter squarely
w/in jurisdiction)
Patchwork or tapestry? The debate
 Fed govt’s 2007 Climate Change Plan (pub’d as obligation of Kyoto) said 85% of GHG emissions come fr areas
under partial or sole prov. control… nevertheless, Ntl Round Table on Enviro & Economy [note: Harper govt
has since de-funded this] 2009 report reco’d possible Cdn carbon tax (transition fragmentation current carbon
pricing policies to unified policy framework.. will be harder to do this in in future)
 Fed initiatives are expensive, stifle innovation w/in Provs, will likely be accompanied by delay tactics (i.e. fed
plan on air quality still not implmt’d more than 4 yrs after announced)
 “Rather than visualizing a patchwork, which gives the impression of a fragmented, heterogeneous arrangement,
let us apply the metaphor of a tapestry in which various patterns are skillfully combined to produce a unit whose
quality exceeds the sum of its parts” (p. 774)
Carbon tax (an example how Federalism can contribute to dvpt/implementation of innovative policy)
 Innovative role of provs in combatting CC appears once again to be eclipsed by perpetual search for best
solution w view to setting Cda-wide policy
 Justifying reg. of carbon based on traditional heads of power is constitutional Trojan horse; carbon is omnipresent, no single aspect of society not directly/indirectly affected by it
 Main cause contributing to reduced effectiveness carbon tax in Norway was exemptions to certain industries
 Carbon tax proponents should support handling by provs, b/c centralized handling by Feds strongly risks
65
clashing w political reality
Conclusion
 Decentralized approach should be greater appeal to political & academic elite who have examined/analyzed
univocal approach that’s reached its limits
o Instead of centralized approach, feds should work in partnership w provs to undertake activities to
complement prov initiatives, thereby maximizing impact of enviro. actions
o Feds should set aside centralist reflexes & encourage provs to continue experimenting, but fulfill its
enviro. responsibilities in its own fields of jurisdiction
 Enviro. challenges call for new forms of governance
Governance & Regulatory Approaches to Climate Change, pp 776-790
Shi-Ling Hsu & Robin Elliot, “Regulating Greenhouse Gases in Cda: Constitutional and Policy
Dimensions”, 2008
Introduction; options for regulating GHG:
 a) Traditional form of enviro. reg. (~Command & Control): some admin standard serves as baseline for pollution
control perf.
 b) Industry practices (~Best Avail. Tech Economically Achievable or BATEA) [note: BAT in other articles]
 c) Cap & Trade programs: allowances to emit, compliance = whether emitter has enough to cover emissions
(economic theory states credits will flow to highest/best use, concentrates emission reduction w those who can
do it cheapest, reducing overall industry compliance cost; thought to spur innovation) *quantity instrument
(certainty of total emissions, but only for emitters covered by program)
 d) Carbon Tax: tax levied at some point of sale; rationale is those that can most cheaply reduce emissions will
*price instrument (certainty of price for consumers)
Fed. attempts at GHG reg.
 Intensity-based trading: diff. to predict how much emissions reduction b/c # allowances tied to productive output
(improvements in productive efficiency essentially lifts ceiling on emissions)
Prov. experiences w GHG reg. (Provs have gone their own ways w GHG policies)
 i.e. AB’s “CC Central” proposed intensity-based targets to achieve Kyoto targets (though Pembina criticized
heavily), & carbon capture (piping carbon underground for indefinite storage); note: like Cda, inflated/used
misleading #’s to make initiatives sound better
 i.e. BC & QB carbon taxes (at POS); administratively simpler to design/carry out than emissions trading scheme
(full descriptions of schemes, p. 279: revenue fr BC scheme goes towards lower-incomer residents “to address
perceptions that consumption-based taxes such as carbon taxes & gas taxes are regressive”)
 i.e. BC and MB Cap & Trade (as part of California led “Western Climate Initiative”)
 i.e. ON & QB bi-prov. Cap & Trade scheme (“signal of widespread impatience w fed. efforts”)
 “BC & QB certainly taken lead in GHG reduction, but magnitude of GHG reductions reqd of Cda necessitates a fed
response, & one that is considerably more serious than any proposed to date”
Reuven S. Avi-Yonah & David. M. Uhlmann, “Combating Global Climate Change: Why a Carbon Tax is a
Better Response to Global Warming than Cap & Trade”, 2009
Key features of Carbon Tax and Cap and Trade
Carbon Tax
 Tax rate based on marginal cost of CO2 emissions (“social cost of carbon”); provides price signal to capture
externality
 Tax revenues for dvpt of alt. energy & address regressive effects of carbon tax
 If tax doesn’t produce reductions, would be increased (and vice versa for overcorrection)
 Implementation through existing programs (IRS & Energy dpt)
Cap & Trade
 Cap on carbon content of fuels, would decline over time
 Complicated: setting baseline for allocation of allowances
 Revenue: absent auction, no revenue generated
 Best example: 1990 Clean Air Act acid rain program  overwhelming success; but, no experience w economywide program
The case for a Carbon Tax  most economists believe carbon tax most effective method for reducing CO2 emissions
66
Advantages of a Carbon Tax
 Simplicity: tax imposed upstream at point of extraction/importation; exports exempted (C&T complex, p. 782);
carbon tax would only req adding few new provisions to existing leg (Internal Revenue Code)
 Revenue: $10/ton would lead to $50 bil per year; some systems “revenue-neutral” as seek to address regressive
effects vs. putting in segregated fund to further reduce GHG (reduce “Benefit Uncertainty”, see below)(C&T no
revenue, free allowances to create buy-in; exemptions fr Carbon Tax more visible)
 Cost Certainty: allows businesses to plan ahead (C&T suffers fr inherent Cost Uncertainty: reducing cap leads to
more expensive allowances, but this depends on future tech, which can’t be predicted)
 Signaling: carbon tax sends clear signal to polluters, even w word “tax” itself (C&T says govt permits you to
pollute if you pay, less clear signal)  forces us to acknowledge cost of polluting activities directly
 Note: also can be implemented faster (so preferable fr an intl-leadership standpoint)
Disadvantages of a Carbon Tax
 Political resistance: critics have concerns it can’t get enacted simply b/c it’s a tax (also opponents may seek to
gain fr C&T, like industries who can reduce & will sell credits, & wall street traders) *most significant hurdle
 Benefit uncertainty: no assurance that give tax level results in desired reduction in GHG emissions *main
substantive disadvantage (though C&T my suffer fr same)
 Tax exemptions: would significantly weaken; however, article only takes into acct oil, coal & natural gas (in
reality, if one of these argued for exemption, other 2 industries would oppose none would get)
 Coordination: benefit to C&T but currently no global system for the US to join; however, enacting US carbon
tax would allow US to participate in global accord on curbing GHG emissions
Note: both Tax and C&T persuade the rest of the world that the US is serious (so they should cooperate)
JR of Climate Change Policy, pp 790-808
Shortage of leg. on CC means few JR cases in CC context to-date
Connection b/w Cda’s intl obligations & domestic leg. considerably debated b/w entering Kyoto in 2005 & withdrawing in
2011 (goal: reduce emissions to 6% below 1990 levels)
Friends of the Earth v. Canada (Gov. in Council), 2008, FC (leave refused SCC)
Issue
3 applctns for JR:
1) Minister failed to
comply w s. 5 (prepare
initial CC Plan);
2) GIC failed to comply
w ss. 8 & 9 (failed to
publish proposed regs in
Gazette & prepare
statement);
3) GIC failed to make,
amend, repeal regs w/in
180 days to meet
commitments
Pl arg: language
unambiguous
Resp: not justiciable,
accountability at the
ballot box, not the Ct
room
Notes
Minority Fed govt failed
to implement Fed. leg
passed by private
members’ bill (Kyoto
Protocol Implementation
Act – purported to bind
Reasoning/Ratio
Statutory Interpretation
Contextual (leg’s purpose, legislative intent, reasonable & just meaning);
Justiciability
Political q can only be JR’d if “possesses sufficient legal component to warrant decision by a
Ct” (uncontested); do these issues qualify?
Underlying: branches of govt must be sensitive to separation of functions in Constitution
 did the Leg. intend for actions of Minister & GIC to be subject to judicial scrutiny?
Re #1: s. 5 incl’s measures, some of which well outside realm of JR (policy-laden, no
objective criteria to be applied to facts); not appropriate for Ct to parse language into
justiciable & non-  while failure of Min. to prepare CC Plan justiciable, evaluation of its
contents is not; also, word “ensure” isn’t mandatory language, provisions allowing for
cooperation implicitly state compliance w s. 5 not mandatory
Re #3: s.6 “GIC may make regs” (clearly not mandatory); 180 days impractical so just
directory/ suggestive; s.7 language doesn’t override discretionary language of s.6  Ct
dictating content of reg. would be inappropriate interference w Exec. role
Re #2: if s.7 doesn’t create duty to reg, follows that ss. 8&9 not justiciable
Parliamentary Accountability: KPIA clearly contemplates this; if Parl. had wanted to impose
justiciable duty, could have said so in clear & simple language  Parl. has created a
comprehensive system of public and Parl. accountability as a sub for JR (however,
significance of Parl. oversight shouldn’t be underestimated, esp. in case of minority govt)
Decision: Ct has no role to play in review’g reasonableness of govt’s response to Cda’s Kyoto
commitments w/in 4 corners of KPIA; limited role for Cts in clearly mandatory elements of
Act; even if wrong about justiciability, would still decline to make order against Resp (as
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fed govt)
matter of discretion – “such an order would be so devoid of meaningful content”)
Facts: Leg. history: KPIA not supported by minority govt (embodies leg policy inconsistent w govt’s stated policy; also
note: can’t spend funds as money bill can’t be intro’d by opposition); CC Plan released, but resp. framed as discretionary,
clear that govt has no present intention to meet Kyoto commitments; NRTEE robust scientific critique of plan; Context:
Cda GHG emissions increased since Kyoto ratification, so would need to purchase emissions credits + drastic action like
tax on energy (GDP would decline, employment levels would fall, energy prices would increase) if meeting immense
challenge of Kyoto targets
US, considerably more litigation w re. to duty of Fed. regulators to take steps to fight CC…
Massachusetts et al, Petitioners v. Enviro. Protection Agency et al., US 2007
Issue
Petition for certiorari that
EPA abdicated resp. under
Clean Air Act to reg.
emissions of 4 GHG, incl.
CO2;
(1) does EPA have stat.
authority to reg. GHG
emission fr new vehicles;
(2) reasons for refusing
consistent w statute?
Notes
Decisive victory
Reasoning/Ratio
Standing: risk of harm, though remote, nevertheless real; reduced to some extent if
petitioners get their relief  they have standing
Re #1: stat. def’s both “air pollution” & “welfare” broadly; CO2 falls into this (“statute is
unambiguous”); discretionary “in his judgment” language  Ct: no doubt Clean Air Act
authorizes EPA to reg. GHG fr cars
Re #2: “unwise to do so” is reasoning divorced fr stat. text, use of word “judgment” not
roving license to ignore stat. text; EPA provided laundry list reasons not to reg. and Ct
doesn’t have expertise/authority to evaluate these, but clear they have nothing to do w
whether GHG contribute to CC, less so have amount to reasoned justification for declining
to form scientific judgment; nor can EPA avoid stat. obligation by noting uncertainty
around CC & decide not to reg. (if uncertainty so great that it precludes reg., EPA must say
so)
Message: reg. agency can’t Decision: EPA offered no reasoned explanation for refusal to decide whether GHG cause/
assume someone else will
contribute to CC; action therefore not in accordance w law
address the CC prob
Facts: 19 orgs filed rulemaking petition w EPA to reg GHG fr new motor vehicles, EPA requested public comment, EPA
denied petition w 2 reasons: (1) Clean Air Act doesn’t authorize EPA to make mandatory regs to address CC, (2) unwise
to do so at this time
Tollefson: may be duty on Min. not to disregard science, either find contradictory science to support their position either way
(esp. when Ministry’s mandate supports)
Note: Friends of the Earth sued Fed. govt under CEPA, alleging in face of growing evidence of CC impacts, Min. violating
CEPA by failing to take appropriate remedial action to “prevent, control or correct pollution”
Note: similarities b/w “in his judgment” in Clean Air Act & “of the opinion” in SARA (s. 80, Emerg Order, as per Adam v.
Canada)
Climate Change and EA, pp 808-818
A. Koehl, “EA and Climate Change Mitigation”, 2010
[Note: old CEAA, but article’s principles applicable to CEAA 2012]
EAS and Climate Change in the US – Useful lessons from the South?
US jurisprudence provides some reason for optimism (req’g more rigour in assessment of climate impacts)
1970 Ntl Enviro. Policy Act (NEPA):
EA leg. reqs production of EIS (Enviro. Impact Statement) if “finding of no significant impact” threshold isn’t met;
intention is to address direct effects & indirect effects that are “reasonably foreseeable”  Guideline dvp’d saying
CC is reasonable foreseeable but never been made final (& review of 10 ESI’s mentioning CC reveal all said GHG
emissions would be “insignificant potion of global emissions”… “foreseeability” has been subject of subsequent
litigation
Centre for Biological Diversity v. Ntl Hwy Traffic Safety Admin:
Successfully challenged NHTSA “final rule” for improved fuel economy standards on basis it violated NEPA (failed
to properly consider GHG implications, alternatives and cumulative impacts)
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Re. CE: what matters is how much being added to atmosphere in real terms & impact of addition (since GHGs
accumulate in atmosphere); shouldn’t matter it’s lower GHG than alt. or “bus. as usual” as it’s adding to CC prob.
Ct ref’d CJ Wald in earlier CC case: “w/out some articulated criteria for significance in terms of contribution to CC
that is grounded in the record & avail. scientific evidence… concl. that magnitude of % inc. enough to alleviate its
burden of conducting more thorough investigation cannot carry the day”
However, sent the matter back to NHTSA for det’n whether rule would have significant enviro. impact, instead of Ct
itself making det’n & ordering EIS
Los Angeles v. NHTSA:
Ct found global warming was proper subject for analysis under NEPA, but upheld NHTSA’s decision that change in
fuel efficiency standard would have no significant impact
Massachusetts v. EPA:
Not EA, but noteworthy for shift twd judicial acceptance of CC science & corresponding obligations on govt bodies
EA Litigation and Law Reform in Cda – Options for a Road Fwd on GHG Mitigation
Cumulative Effects
Greater potential that limit will be exceeded, more imp. every incremental contribution becomes; doesn’t mean every
small GHG release labeled significant – it’s possible to articulate a de minimus range
CE Analysis eliminates need to est. direct causal link b/w individual project’s emissions & resulting CC
consequences (b/c CE allows GHG emissions to be examined as aggregate)
Climate science clear on urgency of prob; so decision that new release of GHG not significant arguably unreasonable
 “q is not whether particular emission was one that broke camel’s back but rather whether it’s an emission that will
contribute to such an occurrence”
Interpreting Significance
Must consider purposes & objectives of CEAA: (1) decisions to be made in careful & precautionary manner; (2)
encourages “sustainable dvpt” (def’d as “dvpt that meets needs of present, w/out compromising ability of future
generations to meet their needs”  strong arg that any GHG emissions will prejudice future gens; (3) in admin’g
CEAA, govt expected to exercise powers “in manner that protects enviro. & human health & applies precautionary
principle”)
Spray-Tech: “lack of full scientific certainty should not be used as a reason for postponing measures to prevent
enviro. degradation”
Note: adaptive mgt isn’t explicit purpose of Act; what we need to know re. CC is quite clear  & it follows that
each emission is significant
 A project could still avoid significance concl. if mitigation brought emissions down to zero (offsets,
carbon capture/storage, or other)
 Also possible if emissions justified in circumstances (based on language in Act) – but this would likely
garner public attention
In stat. interp., can look to intl agreements for indicator of stat. intent: UN Framework Convention on CC suggests
using impact assessments; Rio Declaration reqs them for project w may impact enviro.  may be argued that to
give effect to Cda’s intl obligations to stabilize GHGs, must only approve proposals that would ensure net decrease
in overall GHGs or if reductions could be realized elsewhere as part of proj. approval
Re. political: CEAA is political response to prob. of enviro. degradation; attempt to integrate enviro. considerations
into govt d/making to avoid precisely type of danger CC exposes us to today (so far failed to prevent inc. emissions)
Law Reform – Federal
Integrating National Enviro. Priorities & Intl Enviro. Commitments into the EA Process
Impacts to CC would auto. come part of scope of Fed. EA; cumulative effects becoming priority
“Positive Contribution to Sustainability” as Test for Project Under CEAA
… as opposed to current focus on mitigating significant adverse enviro. effects (question of focus)
Establishing benchmarks for “Significance”
Prob. in Kearl case was judge had no direction on what constituted “significant”; Guidance Docs unlikely to help as
non-binding; suggested that legislative solution would be cleanest approach (explicitly provide GHG
considerations)  prob. w leg. solution has to do w politics
If enact Reg., could be challenged & struck down as ultra vires
Conclusions
Context: 80-95% reduction target for dvp’d countries by 2050 reco’d by IPCC
Could be argued that hoping for benchmarks for GHG is almost no diff. fr hoping for general govt action on CC
EA’s have failed to stop global march twd dangerous CC  but CEAA provisions on CE provide potential opening
to challenge EAs and d/makers in cases where incremental inc. to GHG takes us even closer to critical CC thresholds
Currently EA’s legitimizing (& therefore enabling) projs w high GHGs, when these are leading us twd CC disaster
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Climate Change & Biodiversity, pp 818-828
Will focus on central component of biodiversity: species
Recall SARA chapter parts: (1) listing process; (2) critical habitat; (3) takings; (4) compensation to private parties
J. Kostyack & D. Rohlf, “Conserving Endangered Species in an Era of Global Warming”, 2008
Summary: no drastic changes reqd to US ESA to address effects of CC, real challenges lie elsewhere (significant reg. &
econ. policy reforms aimed at capping/reducing GHGs, resourcing ESA administering agencies, adaptive mgt, ecosystems
approach rather than “species by species”)
Context:
 20-30% species inc. risk of extinction if 2-3 degree inc. global temp, but will be countless climate refugees fleeing
coastal areas & humans will have to rebuild infrastructure of civilization  conservation programs likely to have $
reduced
Probs at species level:
1. Phenology (timing of seasonal events)
2. Distribution of wildlife
Conserving Wildlife in a Changing Climate: Policy Recommendations
 No radical changes reqd to ensure current ESA addresses effects of global warming (just strengthen programs &
funding inc) – even though 35 yr old law, enacted at “dawn of environmental era”
Addressing Endangered Species in Federal CC Legislation
 Congress must leg. substantial, economy-wide reductions in global warming pollution; make necessary investment
into wildlife/biodiversity protection
Making Adaptive Management a Central Focus of the ESA
 Exact consequences of global warming will always defy prediction, so ESA implementation must have flexibility to
change course in response to new info (agencies’ use of term “adaptive mgt” has mostly been lip service in the past
 should enact Regs that req rigour in carrying out adaptive mgt)
Ecosystem-Based Approaches
 Rather than “species by species”
 i.e. Arctic & coral reef systems
Applying the ESA to the Causes of Global Warming Pollution
 Fed. agencies should construe any action that results in non-trivial inc. of GHGs as meeting threshold to trigger
substantive protections of ESA s.7
Conclusion: Congress must place ntl cap on emissions w annual reductions, US must work at intl level to achieve similar
commitments fr other nations, adaptive mgt  integrate biodiversity protection & funding into comprehensive fed reg.
response to CC
J.B. Rulh, “Climate Change and the ESA: Building Bridges to the No-Analog Future”, 2008
Summary: calls for sweeping changes in way rep. fed agencies discharge duties under ESA
Cautious optimism about how global community will respond to CC (author’s approach to article):
 Job of ESA it to help as many species as is reasonably possible get fr present to future w us
Restraint:
 “Going for jugular” by reg. GHGs not how ESA can be of most help to endangered species
 Can provide assistance to more appropriately situated agencies like EPA
Policy choice “pressure points” for Fish & Wildlife Service:
1. Identifying Climate-Threatened Species: early, aggressive identification
2. Regulating GHGs: FWS shouldn’t regulate GHGs
3. Regulating Non-Climate Effects To Protect Climate-Threatened Species: i.e. loss of habitat, should utilize s. 7 reg. &
s.9 taking provisions, as well as innovative approaches like mkt-based and regional planning efforts
4. Designing Conservation and Recovery Initiatives: ecosystem-based mgt approach
5. Species Trade-Offs: differentiate b/w species unlikely to survive CC under any circumstances & those likely to
benefit fr assistance (resources shouldn’t be wasted on non-recoverable species)
6. Dealing w the Doomed: don’t accelerate decline of “doomed” species, but don’t take measures on their behalf at
expense of other species
Conclusion: ESA must be employed in a more focused manner; ESA provides flexibility/means to proactively identify threat
of CC and focus on helping those species that can be helped
Strong supporters & strong critics’ views would doom the ESA; aggressive pursuit of GHG emitters would ignite political
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battle the ESA wouldn’t likely survive  ES should stay engaged in reg. non-climate threats, esp. those stemming from
human adaptation to CC
Perspectives on the Future of Climate Change Law & Policy, pp 828-839
Reason for optimism…?
J. Purdy, “The Politics of Nature: Climate Change, Enviro. Law & Democracy”, 2010
Challenging 2 claims about enviro. public language:
1. “Environmentalism” is unsuited to nature & scale of today’s problems
2. Language is vague, motivationally weak, presumptively poor resource for address’g next gen. enviro. concerns
 US enviro. movement has & can play a constructive role in id’g sustainable path fwd
Politics of Anomaly
 1015 city govts adopted goals of Kyoto Protocol through Mayors Climate Protection Agreement
Anomaly as Persuasion
 Article is integral part of story about democratic self-interpretation rather than anomaly in a story about self-interest;
city govts hope to benefit fr green-dvpt block grants and, in long-term, density-friendly econ. dvpt,  but also hope
to induce others to take similar action
 Opponents favour args that local climate action can only be futile
 Loal govts’ response:
(1) Engaged in symbolic politics (actions demo. existence of envoi. commitments as ntl values, making
public arg. that fed govt should do the same)
(2) Existence proves coordinated action can succeed in reducing GHGs
(3) Attempts to reframe the cultural valence of CC fr ideological flashpoint associated w left-liberal attitude
to rallying pt of pragmatic efforts (i.e. strategists for local initiatives emphasize practical local vulnerability
to CC, like Seattle’s dependence on the Cascade snowpack for water & power)
(4) Practice of membership & mutual respect (give broader class of ppl reasons to believe CC is both real &
susceptible to action
 Activist core: local initiatives are acts of defiance against idea that politics is finite against the pessimistic acct of CC
(rebelling against idea that action if futile)
Community, Politics, Thresholds
 Enviro. movements started as groups wanting to share similar experiences, grew more politically effective as
membership grew (i.e. Sierra Club)
 Participation in local carbon-reduction efforts motivated by: (1) doing the ecologically right thing, (2) form &
participate in communities that do the same
Conclusion: environmentalism gave ideas of nature’s intrinsic value and moral instructiveness new reach in American public
language
P. Havermann, “Ignoring the Mercury in the Climate Change Barometer: Denying Indigenous Peoples’
Rights”, 2009
Summary: global climate regime through Ab lens; Ab interests not formally rep’d in UN based nation-to-nation negotiation
process (nations w significant Ab pops haven’t rep’d those interests, i.e. Cda, US, Aus, NZ)  author argues for humanrights based approach
Introduction:
 Effects of CC being felt most acutely by those least able to cope and least resp. for the problem
 “Participation” in intl climate negations means more than the right to be consulted
 Currently, neither respect for the human rights of Ab ppl, nor for the governance principle of free prior and informed
consent is intrinsic to CC governance regime and resulting carbon mkt
Human rights-based approach to CC governance:
 Must explicitly incorporate substantive & procedural human rights of Ab ppl (& other vulnerable groups)
 Right to healthy, bio-diverse and sustainable enviro. not expressly articulated in “Intl Bill of Rights” so must be
assembled fr whole body of intl law (incl. regional human rights treaties
 CC litig’n limited dimension to human-rights based approach (reactive, costly, time-consuming, result depend on Ct)
Optimism:
 2007 Bali Conference of the Parties to the UNFCCC onwards…
 Right to water has been key focus

Coming yrs will be critical in addressing probs of CC in “attempting to alter the current trajectory to avert
ecocide”
Conclusion: present plight of Indigenous ppl will be future for all humankind; Indigenous ppl are the “miner’s canary, the
mercury in the global warming barometer”
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