GREEN LAW LEGAL PRECEDENTS FOR ENVIRONMENTAL PROTECTION

Richard C. Secord, B.A., LLM Partner

Ackroyd LLP 1500, 10665 Jasper Ave

Edmonton Alberta, T5J 3S9

&

Debbie P. Bishop, B.Sc., LLB, P.Eng and Eva T. Chipiuk, B.Sc., LLB, LLM Associates

Ackroyd LLP 1500, 10665 Jasper Ave

Edmonton Alberta, T5J 3S9

Alberta Wilderness Association ALBERTA WILDERNESS AND WILDLIFE TRUST

ANNUAL LECTURE & AWARDS November 20, 2009

Calgary, Alberta

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TABLE OF CONTENTS I. INTRODUCTION...............................................................................................................3 II. LEGISLATION...................................................................................................................3

1. Species at Risk Act ..........................................................................................................3 (a) Sage-Grouse Judicial Review...................................................................................4 (b) Nooksack Dace Judicial Review ..............................................................................5

2. Canadian Environmental Protection Act ..........................................................................6 (a) Public Reporting ......................................................................................................7

3. Canadian Environmental Assessment Act ........................................................................8 (a) The Oldman River Dam...........................................................................................8 (b) Copper and Gold Mine...........................................................................................10 (c) Cheviot Coal Mine.................................................................................................11

4. Message for the AWA ...................................................................................................11 III. ADMINISTRATIVE BOARD DECISIONS..................................................................12

1. Polaris Decision.............................................................................................................12 2. Capstone........................................................................................................................13 3. EnCana project in the Suffield National Wildlife Area...................................................14 4. Suncor Upgrader Approval ............................................................................................16 5. BC Hydro and the Athabasca Chipewyan First Nation ...................................................17 6. Cheviot Coal Project Joint Panel Report ........................................................................19

(a) Preliminary Motion................................................................................................20 (b) Trial Division.........................................................................................................20 (c) Appeal ...................................................................................................................21 (d) Re-Hearing at Trial Division..................................................................................22

7. Express Pipeline ............................................................................................................23 8. Message for AWA.........................................................................................................25

IV. PRIVATE PROSECUTIONS........................................................................................25 1. Syncrude .......................................................................................................................25 2. Oldman River Dam........................................................................................................26 3. Message for AWA.........................................................................................................26

V. CLASS ACTIONS ............................................................................................................26 1. St. Lawrence Cement.....................................................................................................26 2. Message for AWA.........................................................................................................28

VI. TREATIES SUCH AS NAFTA.....................................................................................29 1. Article 14 of the North American on Environmental Cooperation Agreement. ...............29 2. Message for AWA.........................................................................................................30

VII. THE CHARTER............................................................................................................30 1. Kelly v. Alberta (Energy and Utilities Board) ................................................................30 2. Message for AWA.........................................................................................................31

VIII. CONCLUSION .............................................................................................................31 IX. GLOSSARY..................................................................................................................32 X. TABLE OF CASES...........................................................................................................33

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I. INTRODUCTION

In putting this paper together we have focused mainly on some of the most environmentally significant cases that been decided in Alberta in the last 20 years. We have focused especially on those cases which have challenged Alberta and/or federal environmental laws and which have set precedents in Alberta. We also found that many of those cases included participation by the AWA. The following is a list of some of the cases in which the AWA participated as an applicant or intervener in the last 20 years:

1. A judicial review of the Greater Sage-Grouse Recovery Strategy in 2009 a. Alberta Wilderness Association v. Canada (Environment), 2009 FC 710 b. Alberta Wilderness Association v. Canada (Environment), 2009 FC 882

2. Glacier Power NRCB/CEA/AUC Hearing in 2008

a. Alberta Wilderness Association v. Canada (Attorney General), [2008] FC 1061 b. NRCB/CEAA/AUC Decision 2008-03

3. EnCana Shallow Gas Infill Development Project in 2008 a. EUB/CEAA Decision 2009-008

4. Polaris Resources EUB Hearing in 2002 5. EUB Decision 2003-101

6. A judicial review of the Cheviot Project from 1997 to 1999

a. Alberta Wilderness Association v. Canada (Minister of Fisheries and Oceans), [1997] 146 F.T.R. 19

b. Alberta Wilderness Assn. v. Canada (Minister of Fisheries and Oceans) [1998] F.C.J. No. 821

c. Alberta Wilderness Assn. v. Canada (Minister of Fisheries and Oceans), [1999] 1 F.C. 483

d. Alberta Wilderness Assn. v. Cardinal River Coals Ltd., [1999] 3 F.C. 425

7. A judicial review of the Express Pipeline Project in 1996; a. Alberta Wilderness Assn. v. Express Pipelines Ltd. [1996] 137 D.L.R. (4th) 177

To complete the picture, we have sprinkled in a few significant cases from other parts of Canada as well.

II. LEGISLATION

1. Species at Risk Act

This past year has been a great year for bringing matters of critical wildlife habitat to the forefront. In the two Federal Court Cases described below, the courts have been receptive to the

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fact that action must be taken despite lack of scientific certainty. Additionally the Joint EUB/CEAA panel in the Suffield Decision said that one of their critical reasons for denying the EnCana project was that there was inadequate protection of critical habitat for two animal and three plant species.

(a) Sage-Grouse Judicial Review

Greater sage-grouse were once wide-spread across the Prairies’ but have been listed as endangered since 1998. The Prairie bird now survives in a remote area in the south-eastern corner of Alberta and south-western corner of Saskatchewan. In the past year, sage-grouse numbers have dropped an alarming 20 per cent with Alberta Fish and Wildlife counting 66 males on leks in the spring of 2009, down from 84 in 2008.

Photo Courtesy: EcoJustice Media Backgrounder (2009-07-13) Without habitat protection, the species was forecast to disappear from Alberta within six years, partly as a result of oil and gas developments, which fragment the bird’s grasslands habitat. In Alberta Wilderness Association v. Canada (Environment), 2009 FC 7101, the AWA made an application to the Federal Court of Canada for judicial review of the “Recovery Strategy for the Greater Sage-Grouse in Canada” posted by the Minister of the Environment under the Species at Risk Act (“SARA”). The Greater Sage-Grouse is listed as an endangered species under SARA. Section 39 of SARA states that when a species is listed as endangered, the competent Minister must prepare a recovery strategy of that species. Subsection 41(1)(c) of SARA requires that the Minister identify in a recovery strategy as much critical habitat as it is possible to identify at that time, even if all of it cannot be identified, and to do so based on the best information then available. Both parties agreed that the Minister does not have discretion in identifying critical habitat under the SARA. The AWA argued that it was possible to identify “critical habitat” and that not including it was an error of law in the Minister’s interpretation of the relevant statutory provisions. The Minister argued that was not possible to identify the “critical habitat” and accordingly it was not included in the recovery strategy. The issue was then to determine whether the Minister’s decision that no critical habitat could be identified, within the meaning of section 41(1) of the SARA, was reasonable. Justice Zinn found that s. 41 of SARA indicates that any threats to the recovery of the species must be addressed in the recovery strategy including threats to critical habitat. No discretion is left to the Minister on whether a discussion of critical habitat should be included. Additionally

1 http://decisions.fct-cf.gc.ca/en/2009/2009fc710/2009fc710.html

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the court said that implementing a recovery strategy should not be “postponed for lack of full scientific certainty.” Justice Zinn allowed the judicial review for these reasons, and stated that the Minister must remedy the defect, but he also did not find that the Minister erred in law. Alberta Wilderness Association v. Canada (Environment), 2009 FC 8822 was a supplemental judgment issued by Justice Zinn as to the appropriate remedy in light of the findings that had been made in his decision to allow the judicial review. In his supplemental decision, Justice Zinn stated he was concerned that the Court would usurp the role of the Minister and would then become the “academy of science.” But Justice Zinn ruled that because:

…critical habitat is to be determined based on the “best available information”. Given that there are almost constant developments in all scientific endeavours including those that underlie the Recovery Strategy, the best available information that exists today may well be different and hopefully improved from that which existed when the application was filed.

Justice Zinn ordered the Minister to remedy the part of the Recovery Strategy that was found to be deficient. Ecojustice executive director Devon Page stated:3

This decision confirms our view that the Minister of the Environment is routinely breaking the law by refusing to identify the habitat of species on the brink of extinction. This is only one in a series of endangered species cases we’ve had to bring to force the government to do its duty. We won’t go away - if they continue to ignore the law, we will continue to hammer them in the courts and this case will be a powerful tool for the protection all of Canada’s species at risk, including caribou, killer whales and polar bears.

Alberta Wilderness Association Vice-President Cliff Wallis stated:4

The sage-grouse case will put an end to years of government inaction. There is reason to believe endangered species across Canada will finally receive protection with federal courts forcing the government to obey its own laws.

(b) Nooksack Dace Judicial Review

In Environmental Defence Canada v. Canada (Fisheries and Oceans), 2009 FC 8785 the applicants argued that the Minister failed to follow section 41(1)(c) of the SARA in its recovery strategy for the Nooksack Dace. The Nooksack Dace is listed as endangered species under SARA. 2 http://decisions.fct-cf.gc.ca/en/2009/2009fc882/2009fc882.html 3 Ecojustice Media Release, July 13,2009 4 Ecojustice Media Release, July 13,2009 5 http://decisions.fct-cf.gc.ca/en/2009/2009fc878/2009fc878.html

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Justice Campbell used the following words to describe the Minister’s actions:

This is a story about the creation and application of policy by the Minister in clear contravention of the law, and a reluctance to be held accountable for failure to follow the law.

Photo Courtesy: Ecojustice Media Release (2009-09-10)

Justice Campbell found that at the direction of the Minister and/or his delegate, a critical decision was made to direct the altering of all draft recovery strategies then in progress in the Pacific Region of Department of Fisheries and Oceans (“DFO”). The decision was to remove critical habitat from all Recovery Strategies in the Pacific Region in process and for the foreseeable future until a clear policy direction has been provided, even thought they acknowledged they had a legal obligation to do so.

Justice Campbell referred to Justice Zinn’s decision in the Sage-Grouse case where he found that section 41 of SARA is mandatory and that the Minister made an error in law by stating that “socio-economic interests” should be considered in “developing and implementing recovery measures.” Because the recovery strategy considered socio-economic interests and that the Minister failed to meet the mandatory requirements of s. 41(1)(c), Justice Campbell found that the Minister’s delegate’s actions were contrary to law. Furthermore, Justice Campbell stated that the totality of the Minister’s conduct was fundamentally inconsistent with the precautionary principle as codified in SARA. Cassie Barker of Ecojustice wrote: 6

…in addition to removing critical habitat from the Nooksack dace’s recovery strategy, the Minister also directed that this information should be removed or suppressed from all 20 aquatic species facing extinction in the province. With this win, we’ll be looking to the Minister to make substantial improvements to the way all of Canada’s at risk species are protected, including the dace. Ecojustice is putting DFO on formal notice that it has 90 days to rewrite BC species’ recovery strategies that have failed to identify critical habitat, and we’ll continue to monitor the government’s progress in the coming months.

2. Canadian Environmental Protection Act Judicial Review has often been an effective technique used by environmental groups in order to force Ministers and regulatory authorities to apply the legislation for environmental protection in

6 http://www.ecojustice.ca/ecojustice-blog/a-critical-victory-for-canadas-endangered-species/?searchterm=Nooksack Dace

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accordance with its purpose. Additionally the importance of public participation and transparency in reporting has been affirmed by the courts in the following case.

(a) Public Reporting

In Great Lakes United v. Canada (Environment), 2009 FC 408,7 the applicants applied for a judicial review of the Minister of the Environment’s ongoing failure under the Canadian Environmental Protection Act (CEPA) to require reporting by mining facilities of releases or transfers of pollutants to waste rock and tailings disposal areas. The applicants brought the application pursuant to section 48 of CEPA, which obliges the Minister to establish a national inventory of pollutants and section 53(4) states that the national inventory must be published. The applicants were seeking a declaration that the Minister had erred in interpreting CEPA by not providing such pollutant release information to the public through the National Pollutant Release Inventory (NPRI). There was an extensive history of consultation and discussions between and among various public interest groups, industry and government departments concerning how on-site transfers and releases by mining facilities should be reported to the public. After more than 16 years of consultation there is still no clear indication from the Minister as to how the information was going to be gathered and provided to the Canadian public. The Court was unimpressed with the Minister’s inactions in establishing a reporting scheme and stated:

Notwithstanding these assurances, it is clearly unsatisfactory that such an important part of the pollution picture in Canada is not being reported to the public under CEPA...The Canadian public is the loser and, without such information being readily accessible, cannot participate in the debate or gauge fully the environmental and health concerns that arise from the pollutants… In view of this impasse, and its consequences for Canadians, the present application is entirely understandable. The question is, however, whether there is any legal basis upon which the Court should intervene and grant the declarative and mandatory relief sought by the Applicants. [Emphasis added]

The Minister argued that section 46 left the Minister, in his absolute discretion, the decision on whether or not to report to the Canadian public on environmental hazards that all stakeholders agree should be reported. The Court found that this position did not reconcile with the general scheme and purpose of CEPA and that this application did not ask the Court to interfere with the exercise of a statutory discretion granted under section 46 of CEPA. This application was about the Minister’s failure to carry out the mandatory obligations imposed on him under sections 2, 48 and 50 of CEPA. The Court concluded that judicial review was appropriate in this situation.

7 http://decisions.fct-cf.gc.ca/en/2009/2009fc408/2009fc408.html

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In the Environmental Law Centre, News Brief, Vol. 24 No. 2, Matt Thorpe of stated:8

This ruling is a large step towards greater transparency in environmental reporting. The Court’s decision requires the Minister to publish information about a significant source of pollution in Canada. Not only has this case improved reporting requirements for metal mines, the initial target of the litigation, recently Alberta Environment indicated that the Federal Court ruling equally applies to oilsands tailings ponds, meaning that oilsands operations will now have to report onsite releases in accordance with NPRI requirements.8 Furthermore, the strong wording of the judgment opens the door to arguments that the Federal Government has an obligation to provide greater disclosure and more accurate reporting on the state of the environment. … The full extent of the Minister’s duty to inform Canadians about the state of the environment will not be known without further litigation; however, the Great Lakes United case provides the foundation on which a more comprehensive NPRI can be built.

3. Canadian Environmental Assessment Act

Judicial Review can also be beneficial when public officials interpret their legislation too broadly. We await further comment from the Supreme Court of Canada on the issue of whether the DFO has discretion to veto an Environmental Assessment in the following case.

(a) The Oldman River Dam

The environmental groups have had success with judicial review in the following case which went to the Supreme Court of Canada and which defines the overlap between the provincial and federal powers in protecting the environment. The Friends of the Oldman River Society (“the Friends”), an environmental group in Alberta, brought an application in Federal Court for certiorari and mandamus to compel the federal departments of Transport and Fisheries and Oceans to conduct an environmental assessment, pursuant to the federal Environmental Assessment and Review Process Guidelines Order, which was the predecessor legislation to the Canadian Environmental Assessment Act (“CEAA”). This project was under construction at the time of the application and was at least 40% complete. The project affected a number of federal interests including, Navigable waters, fisheries and Indian lands. The Friends were unsuccessful before the Motions court on the basis of inordinate delay between the issuance of the approval and the motion and the fact that the Dam was already partially constructed. The decision of first instance was reversed by the Federal Court of Appeal who quashed the approval and ordered Canada to conduct an EA and comply with the Guidelines Order.

8 http://www.elc.ab.ca/Content_Files/Files/NewsBriefs/Vol24No2.pdf

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The Supreme Court of Canada heard the appeal. In Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3,9 the Supreme Court of Canada upheld the decision of the Federal Court of Appeal with the exception of the order of mandamus requiring an EA.

Photo Courtesy: AECOM10 The Supreme Court of Canada additionally discussed the constitutional responsibilities of both Alberta and Canada in their 101 page decision at page 84:

In the end, I am satisfied that the Guidelines Order is in pith and substance nothing more than an instrument that regulates the manner in which federal institutions must administer their multifarious duties and functions. Consequently, it is nothing more than an adjunct of the federal legislative powers affected. In any event, it falls within the purely residuary aspect of the "Peace, Order, and good Government" power under s. 91 of the Constitution Act, 1867. Any intrusion into provincial matters is merely incidental to the pith and substance of the legislation. It must also be remembered that what is involved is essentially an information gathering process in furtherance of a decision-making function within federal jurisdiction, and the recommendations made at the conclusion of the information gathering stage are not binding on the decision maker.

In the Vol. 17, No. 17 & 18, edition of EnviroLine, Mark Lowey wrote a tribute to Martha Kostuch, entitled “Martha Kostuch: People and Tree Hugger and a True Friend of the Environment.” With respect to her success on the Oldman River Dam battle, Lowey wrote as follows:

Martha [Kostuch], along with Cliff Wallis of the Alberta Wilderness Association and a handful of other pioneering environmental activities in the province, formed the Friends of the Oldman River. They fought that dam all the way to the Supreme Court of Canada. The dam was eventually built. But Martha and the Friends won a landmark Supreme Court decision that environmental assessment is a shared responsibility of both the federal government (under the Fisheries Act) and the provincial government.

9 http://scc.lexum.umontreal.ca/en/1992/1992scr1-3/1992scr1-3.html 10 http://www.aecom.com/MarketsAndServices/39/13/index.html

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Since the Oldman Dam, no large projects have been allowed to proceed in Canada without such a joint assessment being conducted. The legal precedent is part of Martha’s legacy that environmental groups still rely on to try and improve the environmental protection associated with large projects. Also, no large dams have been built since in Alberta, even though several were on the drawing board.

(b) Copper and Gold Mine

MiningWatch Canada v. Canada (Minister of Fisheries and Oceans), 2007 FC 95511 involved an application by Red Chris Development Company Ltd. to develop an open pit mine for the production of copper and gold in North-western British Columbia At Federal Court in Vancouver, MiningWatch Canada brought an application for judicial review of the decision of the Minister of Fisheries and Oceans not to order a complete and comprehensive Environmental Assessment (“EA”) that was triggered under CEAA and the provincial Environmental Assessment Act and therefore not engaging the public in the assessment process. The DFO informed the provincial authority that they had scoped the project and it was unlikely to cause “significant adverse environmental effects.” Therefore no comprehensive study was required and public participation in the study was not required. The court granted judicial review on the basis that the EA was mandatory under the legislation and the DFO decision was outside of the legislation and therefore open to judicial review. In MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) 2008 FCA 20912 the Appeal was allowed. The Court decided that because the decision not to order an EA was not final, the DFO or the provincial authority could have allowed public participation in the screening level report. The court held that Judicial Review is not appropriate on a preliminary decision of an authority. Additionally the Court found that after the project was re-scoped it was no longer on the mandatory list of projects requiring an EA and therefore there was no reviewable decision as the Minister was acting within CEAA. Jason Unger wrote the following in Environmental Law Centre, News Brief, Vol. 23 No. 1:13

The breadth of application of the Federal Court Trial Division decision in MiningWatch remains to be seen…MiningWatch may therefore have limited application to instances where the responsible authority attempts to redefine a project and thereby remove it from the purview of the [Comprehensive Study List Regulation]. The Court’s obiter comments however seem to indicate a broader application of reasoning that limits a responsible authority’s ability to avoid comprehensive studies.

11 http://decisions.fct-cf.gc.ca/en/2007/2007fc955/2007fc955.html 12 http://reports.fja.gc.ca/eng/2008/2008fca209/2008fca209.html 13 http://www.elc.ab.ca/pages/Publications/NewsBrief.aspx?id=589

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The discretion of the federal government to scope projects under CEAA, as upheld in TrueNorth, had effectively rendered the [Comprehensive Study List Regulation] meaningless. In this regard the MiningWatch case represents an important step to re-instilling logic and reason in the triggering of comprehensive studies. In particular, the MiningWatch case counteracts what appeared to be a government policy of commandeering the legislative process, through a claim of absolute discretion, in an effort to minimize its environmental assessment responsibilities under CEAA.

Leave was granted by the Supreme Court of Canada (“SCC”) on December 18, 2008 and the matter was recently argued before the SCC in October 2009. Environmental groups await the decision of the SCC in the hopes that it focuses on the importance of public participation in decisions affecting the environment. In the original decision from Federal Court, the Court recognized that one of the purposes of CEAA and Environmental Assessment was the inclusion of public review. Public participation was hardly mentioned in the Federal Court of Appeal decision, which focused instead on whether a decision was final and open to judicial review. Additionally, further word is awaited from the Court on whether projects can be approved without any Environmental Assessment where mandatory legislation exists.

(c) Cheviot Coal Mine

Pembina Institute for Appropriate Development v. Canada (Minister of Fisheries and Oceans), 2005 FC 1123,14 involved an application for judicial review quashing an authorization for a coal mine expansion. The coal mine was granted an authorization to build a new haul road without performing any environmental assessment of the project changes. The Court held that the project expansion did not require any environmental assessment The Court ruled that it will not intervene to order a further environmental assessment when an environmental assessment has already been completed. This case may be limited to its facts based on the in-depth analysis by the Court of the facts of the case and the environmental assessment that was completed. The approval for the project that was granted was smaller in scope than that which was assessed. The court said that the assessment completed covered the effects of the actual project that was approved.

4. Message for the AWA

The AWA has already successfully held a Minister’s feet to the fire for failing to meet the mandatory requirements of Federal environmental legislation such as SARA and should look for future opportunities to do the same.

14 http://decisions.fct-cf.gc.ca/en/2005/2005fc1123/2005fc1123.html

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III. ADMINISTRATIVE BOARD DECISIONS

1. Polaris Decision

In EUB Decision 2003-101,15 the AWA joined forces with James Tweedie, Judy Huntley and CPAWS to protect the Whaleback from sour gas well drilling. The Whaleback is an area in south-western Alberta, named after a series of ridges and hills that look like the humped back of a whale and is the largest and least disturbed natural habitat of its type in Canada. Other significant features of the Whaleback16 listed by the AWA include its unusual richness and variety of plants and animals. It is also one of the most significant elk winter, and summer range, in the province, and contains individual limber pine up to 575 years old.

Photo Courtesy: Alberta Wilderness Association The EUB turned down Polaris’ applications based on the following:

1. the inadequacies identified in Polaris’s drilling plan; 2. the overall failure of Polaris to engage in an effective plan of consultation and

communication, which not only hampered its initial dealings with local residents but caused serious doubt as to Polaris’s ability to properly consult and communicate on an ongoing basis, thereby undermining

15 http://www.ercb.ca/docs/documents/decisions/2003/2003-101.pdf 16 http://www.albertawilderness.ca/wilderness/areas/whaleback/archive/200202_FS_WH.pdf/view? searchterm=polaris

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3. its ability to implement many of its plans for mitigation; 4. the inadequacies in Polaris’s assessment and mitigations of environmental impacts; 5. the inadequacies of Polaris’s development plan; 6. the inadequacies in Polaris’s emergency response plan; and 7. the lack of a coherent management plan that would outline how Polaris would be able to

deal with the eventualities of a project of this magnitude in light of its size and Polaris’s lack of experience coupled with its own lack of resources

In Wild Lands Advocate 12(1): 15, February 2004, Shirley Bray, wrote:

In one of its strongest decisions, the Alberta Energy and Utilities Board (EUB) denied applications by Polaris Resources Ltd. to drill for critical sour gas on the borders of the newly protected areas of the Whaleback. AWA commended the EUB for this decision that recognized the particular care we must take with the unique ecosystem of the Whaleback, including lands adjacent to the protected areas. AWA was pleased to see that the decision included concerns about the lack of effective public consultation, the poor well site location, and the inadequacies in the assessment and mitigations of environmental impacts, such as effects on rare plants, wildlife, and water. … Although the EUB is leaving the door open for further applications for drilling in this location, Premier Klein promised in 1999 that this area would remain free of oil and gas development. AWA believes that commitment must be kept. In April the leases held by the Nature Conservancy in the property adjoining that held by Polaris will expire. AWA hopes that the government will not allow these leases to be sold but will keep them protected from development in perpetuity as originally intended when they were donated by Amoco.

2. Capstone

In Mountain View Regional Water Services Commission et al. v. Director, Central Region, Regional Services, Alberta Environment re: Capstone Energy (26 April 2004), Appeal Nos. 03-116 and 03-118-121-R (A.E.A.B.)17 is the leading case from the Environmental Appeals Board (EAB) dealing with an appeal of a Water Act approval issued by Alberta Environment (AENV). AENV had given Capstone an approval to withdraw water out of Red Deer River for a water flood project at the rate of 900 m3 per day or 328,500 m3 annually. Three ranchers were concerned about the impact of the project on both ground water and surface water on their adjacent properties. A hearing was held in Red Deer. In its decision, the EAB recommended that the oil company’s daily water withdrawal rate in the approval be reduced to 600 m3 per day. In the Executive Summary of the Capstone Decision, the Board stated:

The Appellants argue that fresh water is a scarce resource and it should not be used for oilfield injection. The Appellants believe that once fresh water is injected into the ground in this way, it is gone forever. In considering these appeals, the Board highlights the importance of fresh water; it is essential for human existence and it is a limited resource. The Board is also aware of the importance of the oil and gas industry in Alberta

17 http://www.eab.gov.ab.ca/dec/03-116_118-121-R.pdf

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and the work they are undertaking to reduce their use of fresh water in keeping with the principles of sustainable development. The Board must balance the protection of our fresh water supplies with sustaining this essential element of our economy. With respect to these appeals, the Board accepts the Appellants’ argument that when fresh water is injected into the ground in this way it is, for all practical purposes, lost from the hydrologic cycle. Section 2 of the Water Act, in our judgment, requires that any use of water resulting in the loss of fresh water should undergo much greater scrutiny. Further, where fresh water is being used in this way, there should be no distinction between surface water and ground water, because the overall effects on the environment are the same.

Based on all of the evidence received in these appeals, the Board has concluded that the Preliminary Certificate and Proposed Licence should be upheld, but subject to a number of changes, including a reduction in the quantity of water and a staggered, shorter term for the licence. The Board encourages the Government to provide direction through an oilfield injection policy that focuses on minimizing the use of fresh water regardless of its source. In the Board’s view, if fresh water is going to be used for oilfield injection, the Water Act requires that an alternatives analysis be conducted, looking at the technical, economic, and regulatory feasibility of the alternatives and demonstrating that the fresh water will be used not only efficiently, but as the last option considered.

The Environmental Law Centre New Brief Vol. 19 No. 3 stated:

Ultimately, the Board upheld the Preliminary Certificate, subject to several changes. The total volume of water allocated was reduced and may be further reduced subject to a comprehensive alternatives report.14 The Board also varied the required minimum residual flow level, adding on an additional safety margin of 10 percent to provide supplementary protection for other water users and the aquatic environment.15 The Board’s recommendations were accepted by the Minister of Environment by Order dated May 18, 2004. The Capstone decision introduces a more precautionary approach to water allocation in Alberta, especially for uses that effectively remove water from the hydrological cycle. The policy which the Board encourages the Government to create will, hopefully, reflect the realization that, as submitted by the Appellant, Mountain View Regional Water Services Commission, “there are alternatives to oil but no alternative for water.”

3. EnCana project in the Suffield National Wildlife Area

This was a decision of a government-appointed joint panel of the CEAA and the EUB reviewing EnCana’s proposal to drill up to 1275 shallow gas wells and build associated pipelines and infrastructure. The project was to be developed in the Canadian Forces Base Suffield National Wildlife Area (NWA). The proposal required a permit in accordance with the Canada Wildlife Act and an environmental assessment. EnCana had also applied for in accordance with the Oil and Gas Conservation Act to the EUB.

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There were interventions by many parties including the Government of Canada and the Environmental Coalition. The hearing spanned three weeks in October 2008 and the Joint Panel issued the 208 page CEAA/EUB Decision 2009-00818 in January 2009.

Photo Courtesy: Alberta Wilderness Association On January 27, 2009, the Joint Review Panel recommended against granting EnCana permission for the first three of its 1,275 wells. The Joint Panel stated the three most important factors to influence its decision were:

1. The evidence presented that the NWA was a critical habitat for two species of wildlife (Ord’s kangaroo rat and the Sprague’s pipit) and three plant species (the tiny cryptanthe, the small-flowered sand verbena, and the slender mouse-ear-cress).

2. Evidence by Environment Canada that they would be reluctant to issue a permit under

the Canada Wildlife Act that could incidentally affect the protection of critical habitat under the Species at Risk Act. The panel felt that if the project proceeded before there was a plan under the Species at Risk Act, the opportunity to save the habitat would be lost.

3. The lack of a process to regulate the NWA if the project was approved. The Panel stated

that the Suffield Advisory Committee, a body established in 1975 as a three member

18 http://www.ercb.ca/docs/documents/decisions/2009/2009-008.pdf

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committee with membership from Alberta Environment, Environment Canada and the Energy Resources Conservation Board to protect the NWA was under-resourced and unable to deal with the magnitude of the project.

In this case the expert evidence that was presented to the Joint Panel on critical habitat by the interveners was persuasive. However, the Panel fell short of recommending against any further oil and gas development in the NWA. The final decision rests with Ministers MacKay and Prentice. Ord’s Kangaroo Rat Sprague’s Pipit

Photo Courtesy: Wild Lands Advocate (2008) Vol.16 No.6 Photo Courtesy: Nature Canada19 In the Wild Lands Advocate, February 2009, Vol. 17. No. 1, it was noted:

The Suffield Coalition is pleased with the Panel’s confirmation of the NWA’s primary role – to protect wildlife. The final ruling from the federal government will determine whether this irreplaceable remnant of native prairie is truly protected. AWA believes that the only appropriate decision is to prohibit any further oil and gas development in the NWA. We urge Canadians to write to the federal Defence and Environment Ministers, and to the Prime Minister, asking for a denial of EnCana’s application with no possibility to reapply.

4. Suncor Upgrader Approval

In Environmental Resource Centre v. Canada (Minister of Environment), 2001 FCT 142320 Suncor applied for an Upgrader expansion which required an authorization from both the federal Minister of Fisheries (MOF) and the Minister of Environment (MOE). The MOE referred the matter to the MOF who gave the authorization. Several public interest groups applied for judicial review of the decision to allow the authorization. Judicial review was granted based on the fact that the MOF relied to a large extent on the decision of EUB who relied on expected mitigation of multi-stakeholder groups called the

19 http://www.naturecanada.ca/parks_nwa_current_suffield_speciesatrisk.asp#birds 20 http://decisions.fct-cf.gc.ca/en/2001/2001fct1423/2001fct1423.html

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(RSDS) Regional Sustainable Development Strategy and the Cumulative Environmental Effects Management Initiatives (CEEMI). The DFO justified their approval on the premise that the RSDS was an effective regulatory process for mitigating cumulative effects of many oil sands projects. However the court decided that as the MOF and the MOE had little control over the implementation of the RSDS through the multi-stakeholder group, which included industry representatives, it was not reasonable for the Ministers to rely on that process to mitigate and manage cumulative effects. This case potentially has important implications to the Oil Sands. However after this Federal Court decision, the EUB and CEAA/EUB joint panels have continued to approve oil sands projects in least in part on the assumption that multi-stakeholder groups will be successful in assessing and taking action to mitigate the cumulative effects of these large scale developments. The Environmental Law Centre News Brief Vol. 17 No. 121 stated that:

This case is significant because the Federal Court affirmed that the federal government has a non-delegable duty to ensure the mitigation of impacts of projects with potentially major environmental effects. It reaffirmed the role of the federal government as a “watch-dog” of environmental matters and demonstrated that it cannot defer to provincially controlled processes that have no regulated goals or outcomes. It clearly strengthened the federal government’s role in the environmental assessment process as it relates to provincial energy projects. The federal government must be an active participant in the environmental assessment process, not just another participant on par with all other stakeholders. Federal Environment Ministers can no longer dodge their responsibilities. He or she must ensure that proper environmental assessments are completed on projects with potentially large scale environmental impacts - it will not be sufficient to rely strictly on provincial environmental assessments and provincial regulatory processes. On the negative side, the Court did not issue an order of prohibition; however, as Justice Heneghan correctly pointed out, it would have served no purpose since the work had already been completed. The Applicants might have originally sought injunctive relief, but this was not done.

5. BC Hydro and the Athabasca Chipewyan First Nation

In Athabasca Chipewyan First Nation v. British Columbia Hydro and Power Authority (C.A.) [2001] 3 F.C. 412,22 Athabasca Chipewyan First Nation (ACFN) applied for a judicial review of an approval by the National Energy Board (NEB) to British Columbia Hydro (BC Hydro) for equichange transfer (an interchange of equal quantities of power or energy within a stated period) and storage transfer (a transfer of energy that is banked in the form of water in a reservoir of another power system in the expectation that equivalent energy will be returned at a later time).

21 http://www.elc.ab.ca/pages/Publications/NewsBrief.aspx?id=504 22 http://decisions.fca-caf.gc.ca/en/2001/2001fca62/2001fca62.html

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The issue before the NEB was whether the issuance of the permits would have any adverse environmental effects downstream of B.C. Hydro dams and in particular, the Bennett Dam, over and above the effects that would be experienced without such permits being issued. The NEB issued the approval stating "that there would be no significant adverse environmental effects resulting from the proposed exportation of electricity". The Federal Court of Appeal was charged with determining whether the Board’s decision was reasonable. ACFN argued that the effects of the permits on the operation of the W.A.C. Bennett Dam altered the natural flow of the Peace River and that the altered flow has resulted in significant changes to the ecosystem on its traditional and reserve lands, located approximately one thousand kilometres downstream. ACFN said that BC Hydro’s project exacerbates these already existing effects. BC Hydro argued that the new project would not cause adverse environmental effects because: (1) its existing facilities are subject to various regulations; (2) environmental impacts were considered when its facilities were approved; (3) the use of the power produced by its facilities should not be a relevant factor; (4) no new facilities would be constructed for the sake of exports under the permits. Thus, no additional environmental assessments ought to be necessary. The Federal Court of Appeal criticized BC Hydro’s submissions stating that “[t]he central theme of the submissions is that no new facilities will be constructed.” Although the Court acknowledged that that is one aspect of potential adverse environmental effects, it does not consider whether the permits may require a change to the operations of B.C. Hydro's existing generating facilities. With respect to the NEB’s decision, the Federal Court of Appeal found that the NEB did not explain in its reasons what changes, if any, the granting of the permits will have on the operation of B.C. Hydro's and whether any such changes would have adverse environmental downstream effects. The Court stated that:

The [NEB] Regulations requires proponents to furnish information as to the adverse environmental effects of a project and the measures to be taken to mitigate any of those adverse environmental effects. It seems plain that, only if such information is provided, will the Board be in a position to make the decisions it is required to make in a logical and reasonable manner. However, there is no information about what changes, if any, to the operation of B.C. Hydro's dams will result from the issuance of the permits in question. Without such information, I do not see why the rational conclusion, from the information that was disclosed, is that the issuance of the permits will result in no significant adverse environmental effects.

Because BC Hydro had been operating under the permits for over two years, the Federal Court of Appeal ordered the parties to find a solution within 60 days in order to avoid undue disruption. Of note the Federal Court of Appeal also stated:

One interpretation of this finding is that the Board placed the burden on the interveners to demonstrate adverse environmental impacts. If the Board purported to do so, it was wrong. The applicant for the permit must provide the Board with sufficient information to enable the

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Board to make its decisions. The relevant consideration in this case is what operational changes, if any, to existing facilities there will be, as a result of the issuance of the permits. That has simply not been addressed by the Board. Even if it did not place a burden on the interveners, it was not open to the Board to infer from B.C. Hydro's silence as to changes to its operations due to the granting of the permits, that there would be no changes or significant adverse environmental effects. [Emphasis added]

6. Cheviot Coal Project Joint Panel Report

The Cheviot Project was a proposal by Cardinal River Coal Ltd. ("CRC") to develop a number of coal leases owned adjacent to Jasper National Park. The Cheviot Project would include the construction, operation and decommissioning of the mine as well as the up-grade of an access road, the upgrade of a railway line, the installation of a new transmission line and a sub-station to supply electrical power.

Photo Courtesy: Alberta Wilderness Association CRC applied to the DFO for authorizations under the Fisheries Act for its project. The Minister decided that the project may cause significant environmental effects and, therefore, should be referred to a panel under CEAA. Since an environmental review was also required under provincial legislation, the federal Minister of Environment and the Alberta Energy and Utilities Board agreed to hold a joint federal and provincial review as is provided for under the legislation.

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(a) Preliminary Motion

In Alberta Wilderness Association v. Canada (Minister of Fisheries and Oceans), [1997] 146 F.T.R. 19,23 the AWA brought an application for judicial review of the environmental assessment and the EUB-CEAA Joint Review Panel decision of the Cheviot coal project on the basis that the environmental assessment did not comply with the statutory requirements stipulated in CEAA.

The Minister and CRC filed a preliminary motion to strike out the Application because it was filed well over 30 days after the Report of the Review Panel, however, the Minister had not yet issued an authorization under section 35 of the Fisheries Act.

Justice Hugessen questioned whether the Panel report could be considered a "decision or order" subject to judicial review pursuant to s. 18.1 of the Federal Court Act and stated:

Prohibition (like mandamus and quo warranto) is a remedy specifically envisaged in section 18 of the Federal Court Act and like them it does not require that there be a decision or order actually in existence as a pre-requisite to its exercise. Rather I think that the Report should be seen as an essential statutory preliminary step required by the Canadian Environmental Assessment Act prior to a decision by the Minister to issue an authorization under section 35 of the Fisheries Act.

Ultimately Justice Hugessen did not strike the Application because he found that the Minister had not yet made his decision and the applicants sought to prohibit the Minister from making that decision on the grounds that the Panel Report is fatally defective.

(b) Trial Division

After the Minister and CRC’s preliminary motion was dismissed by Justice Hugessen, there was a hearing on the merits of the application for judicial review in front of Justice McKeown. In Alberta Wilderness Assn. v. Canada (Minister of Fisheries and Oceans) [1998] F.C.J. No. 821 AWA and other applicants sought: (a) a declaration that the environmental assessment report is invalid and should therefore be quashed; (b) a declaration that the Review Panel erred in law and acted without jurisdiction; (c) a direction that the assessment report be referred back to the Panel; (d) a prohibition against the Minister from issuing authorizations until all applicable federal legislation has been complied with; (e) the quashing of existing authorizations; and (f) a requirement that all applicable federal legislation be complied with. The applicants did not apply for judicial review of the Federal Response. The CRC and the Minister both submitted that the failure of the applicant to challenge the Federal Response was fatal to this judicial review application. The Federal Response was the Government of Canada's reply to the Joint Review Panel Report recommendations and identified how the Government of Canada intended to address those recommendations. Once the Review Panel issued its report, its

23 http://decisions.fct-cf.gc.ca/en/1997/t-2354-97_45/t-2354-97.html

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role comes to an end. In making his determination, the Minister was not constrained by the Panel Report. The Federal Response indicated that the Minister accepted the Joint Review Panel's recommendation to issue authorization pursuant to the Fisheries Act subject to appropriate conditions to implement identified and mitigative measures. This meant that the Minister decided the environmental effects of the project were either insignificant, or significant but justifiable. The Minister could then proceed with the Fisheries Act authorization under s.35. Justice McKeown ruled that although prohibition does not require that an order actually exists, it is necessary that there is not another step that supersede it, in this case the Federal Response. Since the Federal Response was not challenged, Justice McKeown stated that he was not in a position to determine whether the matters complained about under CEAA had been remedied. He also went on to say:

If I were to issue a prohibition against the Joint Panel Report, this would require the resumption of further hearings by the Joint Panel, with the result that the new recommendations might very well be exactly what is included in the existing Federal Response. The applicants might then seek judicial review of the Federal Response. Prohibition is an equitable remedy and is an inappropriate remedy to be exercised when a further step has been taken in the process.

Justice McKeown ruled that once the Federal Response had been issued, it was too late for the applicants to rely on errors in the Joint Panel report. Accordingly, he dismissed the application for judicial review, stating that the Federal Response constituted a barrier to the relief claimed by the applicants.

(c) Appeal

Alberta Wilderness Assn. v. Canada (Minister of Fisheries and Oceans), [1999] 1 F.C. 48324 was the appeal from Justice McKeown’s decision to dismiss the AWA’s application for judicial review. Based on the Federal Court of Appeal’s review of CEAA, it concluded that the Minister must consider an environmental assessment before taking a course of action and in fact the Minister has no jurisdiction to issue authorizations in the absence of an environmental assessment. The fact that the Federal Response had been issued and remained unchallenged did not change the Minister’s requirements and the failure to comply with such requirements would deny the responsible authority the jurisdiction to proceed. The Federal Court of Appeal held that:

The appellants are entitled to seek prohibition against the Minister on the basis that the panel report is materially deficient. The fact that the federal response was not challenged is irrelevant to the appellants' claim. In my view, the federal response does not supersede the

24 http://decisions.fca-caf.gc.ca/en/1998/a-191-98_18649/a-191-98.html

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panel report, nor can it, as the respondents suggest, potentially cure any deficiencies in the panel report. The two are separate statutory steps with distinct purposes and functions. Therefore, the appellants are entitled to bring into question the report and are not barred from doing so because they did not challenge the federal response.

The Federal Court of Appeal stated that the Trial Division judge should have decided whether a proper environmental assessment was conducted by the Joint Panel. Accordingly, the appeal was allowed and the matter referred back to the Trial Division for determination on the merits.

(d) Re-Hearing at Trial Division

In Alberta Wilderness Assn. v. Cardinal River Coals Ltd., [1999] 3 F.C. 425, the AWA had their matter re-heard at trial level in front of Justice Campbell. However, by the time this application was heard, the Minister had already granted CRC with the project authorizations under section 35 of the Fisheries Act. The issues considered by at this hearing were as follows:

1. Did the Joint Review Panel err in law and jurisdiction, in purporting to carry out an environmental assessment of the project, without complying with paragraph 4(a), section 16 and section 34 of CEAA and with the Joint Panel Agreement?

2. Did the Joint Review Panel conduct its public hearings in accordance with the principles

of procedural fairness, the procedural requirements of CEAA and the Joint Panel Agreement, and the legitimate expectations of the applicants?

3. Is the Minister prohibited from issuing Fisheries Act authorizations for aspects of the

project that will contravene the Migratory Birds Regulations? Justice Campbell relied on the Alberta Wilderness Assn. v. Express Pipelines Ltd. case for the precedent that an environmental assessment can be challenged and found not to be in accordance with CEAA. With respect to the Joint Review Panel in this case, Justice Campbell stated that the panel had two roles to fulfill: (1) provincially the role was of a final decision-maker; and (2) federally the role was to provide a recommendation to the Minister. Given the requirement under CEAA to meet to meet the "consideration" duty, Justice Campbell found that Joint Review Panel is required to perform to a high standard of care and further stated:

I find that to meet its reporting obligations, the Joint Review Panel must clearly state its recommendations in the Joint Review Panel's report, including the evidence it has relied upon in reaching each recommendation. I also find that if the Joint Review Panel decides to fill a gap in the evidence with its own expert opinion, it must clearly state this to be the case and give an explanation for why doing so is necessary. In this way, the CEAA decision maker, and the public, will be able to decide the weight to be placed on each recommendation reached.

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The Joint Review Panel breached its duty to obtain all available information about likely mining [and forestry] activities in the vicinity of the project, to consider this information with respect to cumulative environmental effects, to reach conclusions and make recommendations about this factor, and to substantiate these conclusions and recommendations in the Joint Review Panel's report. As a result of a breach of due process based on legitimate expectations, the Joint Review Panel has committed a reviewable error in that it did not consider information it accepted for consideration.

Because Justice Campbell found that the Joint Review Panel had breached its duty and committed error in due process, the Minister's authorization was issued without jurisdiction and it was quashed. Justice Campbell was also asked to determine whether the Minister’s authorization under section 35 of the Fisheries Act was contrary to law. Justice Campbell found that because the Minister is liable for issuing an authorization, his actions were “contrary to law” within the meaning of paragraph 18.1(4)(f ) of the Federal Court Act. However, Justice Campbell denied making an order to prohibit the Minister from issuing any further Fisheries Act authorizations because the Minister could avoid liability for contravening an Act, if appropriate regulations were passed. If the Minister did not obtain such protection, any further authorizations issued without it would be subject to judicial review and order overriding the Minister’s decision at the discretion of the Court.

7. Express Pipeline

Alberta Wilderness Assn. v. Express Pipelines Ltd. [1996] 137 D.L.R. (4th) 177 the AWA made an application for judicial review of decision of the Joint Review Panel charged with the assessment under CEAA of a proposed underground crude oil pipeline to be constructed by Express Pipelines Ltd. (Express) from Hardisty, Alberta to the U.S. Border at Wildhorse, Alberta and onward to Casper, Wyoming. In this case a Joint Review Panel report and a subsequent action by a responsible authority were under attack. The Minister’s decision is appealable to the Federal Court of Appeal, accordingly the applications were consolidated and heard together in the Federal Court of Appeal as a matter of judicial policy and economy. The AWA brought forward the following arguments:

1. That the panel improperly restricted its consideration of "upstream" cumulative effects of the project, especially in light of the Minister's exercise of her power and duty to determine the scope of the project under section 15.

2. The Panel erred in their interpretation of paragraph 16(2)(b) and that the French

version of that provision compels or even suggests a different interpretation.

3. The Panel members were biased because they were also NEB members (either permanent or temporary).

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4. The Panel improperly limited its consideration of alternative means.

5. The Panel improperly delegated some of its functions when it recommended that

certain further studies and ongoing reports to the NEB should be made before, during and after construction

The Federal Court of Appeal found that the joint review panel in that case conducted a "full and thorough environmental assessment" and dismissed AWA’s arguments. Furthermore, the court provided the following caution when filing an application for judicial review:

In the first place, and in a general way, the great majority of the applicants' submissions failed to raise any questions of law or jurisdiction but were simply an attack on the quality of the evidence before the panel and the correctness of the conclusions that the majority drew from that evidence. No information about the probable future effects of a project can ever be complete or exclude all possible future outcomes. The appreciation of the adequacy of such evidence is a matter properly left to the judgment of the panel which may be expected to have, as this one in fact did, a high degree of expertise in environmental matters. In addition, the principal criterion set by the statute is the "significance" of the environmental effects of the project: that is not a fixed or wholly objective standard and contains a large measure of opinion and judgment. Reasonable people can and do disagree about the adequacy and completeness of evidence which forecasts future results and about the significance of such results without thereby raising questions of law.

The Winter 1996, AWA Action Alert reported as follows:

The construction and operation of the pipeline will, the group claims, put at risk a number of endangered and threatened species by fragmenting the ecosystem, killing individuals, disturbing crucial breeding and wintering areas and facilitating increased predation and weed incursions along the pipeline route. The AWA notes that approval was given to the pipeline even thought these impacts are well understood. The group calls the company’s attitude toward the potential threat to some species “surprisingly callous.” Express Pipeline ignored the potential for damage in the selection of its route, which the AWA says unnecessarily cuts through the relatively undisturbed and nationally-significant Sage Creek area, when it could have paralleled existing disturbances. Although the company apparently downplayed or ignored many of the concerns associated with the project’s development, it has instituted an extensive environmental mitigation and education program for its workers. It is also committed to the AWA’s request for a long-term monitoring program to study and remedy the impacts of such projects. The attention given to the Express proposal has inspired other companies to realign their own projects to avoid such ecologically-sensitive regions.

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8. Message for AWA

Most of these administrative tribunals are mandated with determining whether the proposed project is in the public interest. The involvement of NGO’s have made tremendous impact in shaping decision made by administrative tribunals in so far as they affect the environment. The AWA itself has experienced success in this very important area and should continue to intervene and put forward its views on what it believes is the ‘”public interest.”

IV. PRIVATE PROSECUTIONS

1. Syncrude

Private citizens are able to initiate private prosecutions against alleged offenders and is an important tool for environmental groups. Most recently in January of this year Jeh Custer, working together with Ecojustice, swore an information alleging a violation by Syncrude Canada of section 5.1 of the Migratory Birds Convention Act for depositing substances harmful to migratory birds in its tailing pond after approximately 500 ducks died after landing on one of Syncrude’s tailings ponds. Photo Courtesy: Ecojustice Newsletter (Sept, 2009) The prohibition in section 5.1 reads as follows:

5.1 (1) No person or vessel shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area. Section 13 of the Act makes it an offence to contravene section 5.1(1).

One month later in February 2009, Alberta laid charges under the Environmental Protection and Enhancement Act. Canada also laid one charge against Syncrude under the Migratory Birds Convention Act. The maximum penalty for the Environmental Protection and Enhancement Act offence is $500,000.00 and under the Migratory Birds Convention Act the maximum penalty is $300,000.00.

In September of this year Syncrude plead not guilty to the charges alleging that they had done all that they could do to prevent the incident.

EnviroLine Vol. 18 No 2&3 stated:

…That action, launched by Ecojustice on behalf of Custer, is now likely to be withdrawn.

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“We’re glad that our action spurred government to step in and do the bare minimum - enforce its own laws,” said Gillian McEachern of ForestEthics, which also supported the private prosecution. Simon Dyer, oilsands director with the Pembina Institute, said the current low penalties for environmental infractions “are obviously not going to be much a deterrent in terms of future incidents.” … In early February, the Alberta Energy Resources Conservation Board announced new rules governing tailings ponds. They require oilsands companies to reduce the fine particulates in liquid tailings by 50 per cent within four years, in addition to what is already being captured.

The directive also requires tailings ponds to be reclaimed within five years after they’re no longer in use. Companies that don’t meet the requirements face shutdown orders or delays in upgrade approvals.

2. Oldman River Dam

In the late 1980’s an environmental group including the late Martha Kostuch started a private prosecution in relation to the acts of the Alberta Government in building the Oldman River Dam (Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3). In that case the Friends of the Oldman River alleged that Alberta was in contravention of the Fisheries Act by harming fish habitat in the river. Shortly after process was issued by the court the Alberta Attorney General intervened and entered a stay of proceedings. Martha Kostuch challenged this policy by filing several subsequent informations, only to be denied each time by the Attorney General. Her attempts to prosecute produced 9 judgments by Alberta courts over approximately 7 years.

3. Message for AWA

Private prosecutions bring attention to the environmental harm being done by a polluter. While there is no guarantee the private prosecution will be stayed by the Crown, it is still a worthwhile option to utilize.

V. CLASS ACTIONS

1. St. Lawrence Cement

St. Lawrence Cement Inc. v. Barrette, 2008 SCC 6425, was the first environmental class action lawsuit from Quebec to be considered by the Supreme Court of Canada. This was a case where the plaintiff’s argued in favour of preserving the legal remedy of nuisance to protect citizens from corporate polluters. In 1952, the Quebec legislature passed a special statute authorizing St. Lawrence Cement Inc. (“SLC”) to build a cement plant in a municipality. After the plant began operating in 1955,

25 http://scc.lexum.umontreal.ca/en/2008/2008scc64/2008scc64.html

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neighbourhood problems arose between SLC and neighbours. Citizens’ complained about problems with dust, odours and noise and contended that the disturbances caused by the plant were abnormal or excessive. Quebec’s Superior Court certified the class action which included residents living in areas near the plant on the basis that a scheme of no-fault liability of Art. 976 of the Civil Code of Québec (“C.C.Q.”) which reads:

Neighbours shall suffer the normal annoyances that are not beyond the limit of tolerance they owe each other, according to the nature of location of their land or local custom.

For the rest of Canada with the common law system, the counterpart of this article is the tort of nuisance. The trial judge found that, even though SLC had operated its plant in compliance with the applicable standards, the neighbours suffered abnormal annoyances that were beyond the limit of tolerance neighbours owe each other and found that they were liable under Art. 976 of the C.C.Q. The trial judge ordered SLC to pay $15 million in damages. With respect to how she defined “neighbour,” the trial judge found that although the plaintiff must prove a certain geographic proximity between the annoyance and its source, the word must be liberally construed. SCL appealed the decision to the Quebec Court of Appeal. The Court of Appeal rejected the theory of no-fault liability in respect of neighbourhood disturbances and that the plaintiff must prove negligence. The burden of proof is more onerous in such a case and the plaintiff must prove the fault, an injury and a causal connection between the two. The Court of Appeal did find that SLC was liable for failing to maintain their pollution control equipment and stated that the right to bring such claims was limited to owners of land (as opposed to “tenant”). SLC appealed the Court of Appeal’s conclusion that it was liable on the basis of fault and to the immunity to which it claims to be entitled under the special statute applicable to its plant. The Plaintiffs cross-appealed, seeking recognition of a no-fault liability scheme applicable to neighbourhood annoyances that are excessive and seeking to restore the trial court’s conclusions on the quantum of damages. On November 20, 2009, the Supreme Court of Canada upheld the trial judge’s decision and found that citizens could claim damages without having to prove fault where the effects are excessive. The Supreme Court specifically commented on the Court of Appeal’s decision stating that:

The Court of Appeal’s approach would also mean that a remedy under art. 976 C.C.Q. would not be available to lessees or occupants, since they would not be able to claim to have a real right. Yet the courts have already found that lessees, too, may benefit from this scheme even though they do not have such a right. One author points out that no court has yet held an action under art. 976 C.C.Q. to be inadmissible [translation] “on the basis that it was brought by someone other than the holder of a right of ownership” (Laflamme, at p. 232). Indeed, it seems incongruous to tie the right to enjoy a neighbourhood without excessive disturbances solely to status as an owner even though the damage is suffered by the plaintiff, not the plaintiff’s property. On that basis, the Superior Court has held that the term “neighbour”

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refers not only to the holder of a real right in land, but also to any person who exercises a right to enjoy or use land. [Emphasis added]

The Supreme Court also made a reference to the general policy considerations and stated:

Finally, it must be mentioned that the acceptance of no-fault liability furthers environmental protection objectives. The Minister stressed the importance of the environment and the quality of life in his commentaries on the chapter concerning the ownership of immovables (Commentaires du ministre de la Justice, vol. I, at p. 570). No-fault liability also reinforces the application of the polluter-pay principle, which this Court discussed in Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58 (CanLII), [2003] 2 S.C.R. 624, 2003 SCC 58:

To encourage sustainable development, that principle assigns polluters the responsibility for remedying contamination for which they are responsible and imposes on them the direct and immediate costs of pollution. At the same time, polluters are asked to pay more attention to the need to protect ecosystems in the course of their economic activities. [Emphasis added]

EnviroLine Vol. 18 No 2&3 quoted as follows:

“This is an extremely important judgment and a big victory for citizens because it recognizes they have tight to claim damages in a case where the effects (of pollution) are excessive, without having to prove fault by the company”: said Line Magnon, the Quebec City lawyer who won the case along with lead lawyer Jaques Larochelle. … “On compliance, though, the message to industry is somewhat less clear,” [a Blakes, Cassesls & Graydon LLP email brief] said. “It may be that absent explicit provision under a special law, complying with environmental regulations and acting with due diligence no longer affords protection against civil liability.” Montreal Gazette, EnviroLine.

2. Message for AWA

The Supreme Court’s decision in this case was very valuable to environmental protection because it:

1. Reaffirmed that plaintiffs do not have to prove fault; 2. Rejected the argument that only owners of land can be the plaintiffs, but “any person

who exercises a right to enjoy or use land”; and 3. A statutory authorization is not a defence.

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VI. TREATIES SUCH AS NAFTA

1. Article 14 of the North American on Environmental Cooperation Agreement.

The Commission for Environmental Cooperation of North America (CEC) is an international organization created by Canada, Mexico, and the United States under the North American Agreement on Environmental Cooperation (NAAEC) to address regional environmental concerns, help prevent potential trade and environmental conflicts, and promote the effective enforcement of environmental law.26 The agreement is intended to complement the environmental provisions of the North American Free Trade Agreement (NAFTA). Articles 14 and 15 of NAAEC include procedures allowing any “non-governmental organization or person […] residing or established in the territory of a Party” to make submissions to the CEC Secretariat asserting “that a Party [to the NAAEC] is failing to effectively enforce its environmental law.”27 The process available through NAAEC is not adversarial and the reviewing body does not make rulings on the merits of the assertions. Rather, the board that reviews the matter is an independent and neutral body tasked with making recommendations. In 1996 Mr. Aage Tottrup filed the first Canadian Petition filed under Article 14 of the NAAEC. BorderLines 25 (Vol. 4, No. 6, July 1996)28 reported on Mr. Tottrup’s petition as follows:

In the petition, Tottrup submitted that the Canadian federal government and the provincial government of Alberta failed to enforce environmental laws protecting wetlands in that province. The petition alleges that sewage runoff and other forms of pollution are contaminating Alberta's Big Lake and surrounding wetlands, endangering the habitat of many species of fish and birds. CEC spokesperson Rachel Vincent said that Tottrup has filed a separate lawsuit in Canadian courts, which if decided in his favour would make the CEC's review of the matter "irrelevant." However, Tottrup could resubmit the CEC petition if the domestic lawsuit proves unsuccessful.

Borderlines also reported on a petition by the Citizens Environmental Alliance as follows:

Also in April, the CEC accepted an Article 13 request by the Citizens Environment Alliance of South-western Ontario (CEA) for an investigation regarding U.S. discharges of pollutants into the Detroit River. The CEA claims that the United States is violating the Boundary Waters Treaty of 1909 and the Great Lakes Water Quality agreement, resulting in transboundary pollution that threatens the health of Canadians living on the U.S.-Canada border. Under Article 13, citizens may request that the CEC Secretariat conduct an investigation on environmental matters, although unlike Article 14 requests, the Secretariat cannot ask the government under investigation to formally respond on the matter and CEC Council

26 http://www.cec.org/files/PDF/SEM/NAELP-vol19_en.pdf 27 http://www.cec.org/citizen/index.cfm?varlan=english 28 http://americas.irc-online.org/borderlines/1996/bl25/bl25bb.html

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authorization is not required for the Secretariat to conduct such an investigation. The Secretariat is currently reviewing the CEA's request.

2. Message for AWA

By August 2004, the CEC Secretariat received 44 citizen submissions since 1995, fourteen of these involved Canada. The petitions varied from a concern with respect to a specific project or incident, to allegations of widespread failure to effectively enforce environmental provisions against an entire industry. The reported cases from 1995 to 2004 can be found in the report prepared by the Commission for Environmental Cooperation of North America.29 The AWA can utilize the NAAEC to raise enforcement concerns regarding many different types of environmental laws, including habitat protection, pollution prevention and environmental assessment provisions.

VII. THE CHARTER

1. Kelly v. Alberta (Energy and Utilities Board)

In the recent case of Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 5230 a group of landowners made an application for leave to the Court of Appeal to appeal a decision of the AEUB (as they then were) that granted a license to West Energy to drill two sour gas wells with conditions. In the written decision under appeal (Decision 2007-061) the EUB acknowledged that “drilling the wells presents an inherent hazard for the residents in the area” and that “[r]elocating residents was the best option to reduce the risk to the Applicants.” The Court granted leave on two grounds, one of which was s.7 of the Canadian Charter of Rights and Freedoms which states:

s.7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In granting leave on this issue Justice Berger said:

[I]t is at least arguable that the Applicants should be entitled to mount an argument on appeal that s. 7 may now be invoked and an infringement made out if they can establish:

a) that there has been a real or imminent breach of the life, liberty or security of the person; b) that there are relevant principles of fundamental justice that apply; and c) that the deprivation of the life, liberty or security of the

29 http://www.cec.org/files/PDF/SEM/NAELP-vol19_en.pdf 30 http://www2.albertacourts.ab.ca/jdb/2003-/ca/civil/2008/2008abca0052.pdf

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person was not in accordance with identified relevant principles of fundamental justice.

See R. v. White, [1999] 2 S.C.R. 417 at para. 38.

2. Message for AWA

It is arguable that the first stage of s.7 (a real or imminent breach of the life, liberty or security of the person) could be met and a breach demonstrated if an administrative tribunal were to approve a project in the presence of expert evidence showing that the projects poses a risk to human health. However, expert evidence establishing that there is an imminent risk to health is crucial to the success of any s.7 claim.

VIII. CONCLUSION

The preceding summary of case law leads to some conclusions on strategies that have seemed to work in this area and where efforts should be focused by the AWA. It seems clear that there is a line that the Courts have drawn where discretionary decisions of approving authorities both federally and provincially can go too far and become contrary to the mandatory language and intention of the environmental legislation. If the AWA continues to engage the judiciary and if the courts continue to find in favour of open and transparent decision making, the AWA will no doubt have a positive effect on shaping environmental policy in Alberta and Canada. In Alberta we are in state of flux with the recent passing of the Alberta Land Stewardship Act (“ALSA”). ALSA raises concerns about the focus of Alberta on more discretionary decision-making and less mandatory legislation. ALSA allows for broad powers to create regional plans as super-regulations which may encroach on areas traditionally covered by environmental legislation. ALSA is written to protect these decisions with a very strong privative clause seeking to shield the decision makers from interference by the Courts. This privative clause will likely need to be tested in the future. However the strategy of seeking judicial review in federal court where federal powers overlap those of the province may become even more promising. Additionally groups may also need to turn to other alternative approaches such as legal strategies based on the Charter or NAFTA as discussed herein. In moving forward with environmental protection, the AWA should not forget Martha Kostuch call to action as quoted in Mark Lowey tribute to Martha Kostuch (EnviroLine Vol. 17, No. 17 & 18):

“We need to truly protect our wilderness, native prairies, wetlands and rivers, not just for their beauty and recreational opportunities, but for their biological diversity and the fundamental human needs they help meet.”

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IX. GLOSSARY

ALSA Alberta Land Stewardship Act AUC Alberta Utilities Commission CEAA Canadian Environmental Assessment Act CEC Commission for Environmental Cooperation of North America CEPA Canadian Environmental Protection Act CPAWS Canadian Parks & Wilderness Association DFO Department of Fisheries and Oceans ERCB Energy Resources Conservation Board EUB Alberta Energy and Utilities Board NAFTA North American Free Trade Agreement NEB National Energy Board NRCB Natural Resources Conservation Board NPRI National Pollutant Release Inventory SARA Species at Risk Act

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X. TABLE OF CASES

1. Alberta Wilderness Association v. Canada (Environment), 2009 FC 710

2. Alberta Wilderness Association v. Canada (Environment), 2009 FC 882

3. Environmental Defence Canada v. Canada (Fisheries and Oceans), 2009 FC 878

4. Great Lakes United v. Canada (Environment), 2009 FC 408

5. Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3

6. MiningWatch Canada v. Canada (Minister of Fisheries and Oceans), 2007 FC 955

7. MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) 2008 FCA 209

8. Pembina Institute for Appropriate Development v. Canada (Minister of Fisheries and Oceans),

2005 FC 1123

9. EUB Decision 2003-101

10. Mountain View Regional Water Services Commission et al. v. Director, Central Region, Regional

Services, Alberta Environment re: Capstone Energy (26 April 2004), Appeal Nos. 03-116 and 03-

118-121-R (A.E.A.B.)

11. CEAA/EUB Decision 2009-008

12. Environmental Resource Centre v. Canada (Minister of Environment), 2001 FCT 1423

13. Athabasca Chipewyan First Nation v. British Columbia Hydro and Power Authority (C.A.)

[2001] 3 F.C. 412

14. Alberta Wilderness Assn. v. Canada (Minister of Fisheries and Oceans) [1998] F.C.J. No. 821

15. Alberta Wilderness Assn. v. Canada (Minister of Fisheries and Oceans), [1999] 1 F.C. 483

16. Alberta Wilderness Assn. v. Cardinal River Coals Ltd., [1999] 3 F.C. 425

17. Alberta Wilderness Assn. v. Express Pipelines Ltd. [1996] 137 D.L.R. (4th) 177

18. St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64

19. Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 52