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Unleashing the Environmental Power of Municipalities: Recommendations to Strengthen Alberta’s Municipal Government Act

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Credit: WinterforceMedia

Municipalities play a key role in the management and protection of Alberta’s environment. This occurs through regulation of private land uses and through local land use planning. Municipalities can also direct local changes that reduce the trajectory of greenhouse gas (GHG) emissions and create resilient communities that can adapt to the changes caused by climate change.

Other important local low-emission solutions include those focused on transportation (such as redesign of traffic flows and reconfiguring urban development) and the use of green spaces.However, the environmental management and protection role played by municipalities could be enhanced with legislative changes. Changes should be made to clarify municipal purposes and to create a specific bylaw power allowing municipalities to address environmental matters. As well, changes should be made to expand the currently limited range of enforcement tools and revenue powers available to municipalities. Finally, public participation opportunities in municipal decision-making can be improved with legislative changes.

Municipal Government Act Review

In Alberta, the powers and activities of municipalities are governed by the Municipal Government Act (the “MGA”). Over the past couple of years, the Alberta government has been reviewing the MGA (as well as negotiating City Charters with the municipalities of Edmonton and Calgary). Consultations on the MGA commenced in January 2013 (review details can be found on the MGA Review website).

Following the review process, some changes to the MGA were made with the introduction and passage of Bill 20: Municipal Government Amendment Act in March 2015. The most significant of these changes are provisions enabling the creation of City Charters which may modify or make inapplicable specific provisions of the MGA to Charter Cities. As well, a City Charter may enable a Charter City to modify or replace provisions of the MGA via bylaw. In addition, there were minor changes to provisions dealing with assessment of property definitions, general taxation provisions, local improvement taxes, and off-site levies.
Given their authority over local matters such as planning, transportation, and waste management, municipalities can play an essential role in reducing the trajectory of GHG emissions and creating resilient communities that can adapt to the changes caused by climate change.A second amendment bill is expected this spring (see the government’s Next Steps website). The government has indicated that its priorities for the updated MGA are:

  • strengthened provincial-municipal relations;
  • greater regional collaboration;
  • more sustainable and inclusive development;
  • further responsibility for land use and environmental conservation; and
  • increased fairness and consistency for Alberta taxpayers.

Given that the current MGA does little to expressly require or to empower municipalities to manage and protect the local environment, it is encouraging that the government has chosen sustainable and inclusive development and increased municipal responsibility for land use and environmental conservation as two of its priority areas.

Empowering Municipalities for Environmental Management and Protection

The Environmental Law Centre has made several recommendations to strengthen the MGA (see our recommendations here). The goal of our recommendations is to make environmental management and protection key priorities in the activities of municipalities. These recommendations fall into several broad categories:

1. Protection and management of the environment is a valid municipal purpose and, as such, should be expressly recognized in the MGA.

We recommend that the definitions of environment and sustainability be incorporated into the MGA, and that environmental protection and management be expressly included as municipal purposes. It is our view that expressly granting municipalities clear legislative guidance and authority for dealing with environmental matters will enhance the provincial approach to regional land use planning under the Alberta Land Stewardship Act (“ALSA”).

2. The MGA should incorporate by-law purposes specific to protection and management of the environment.

We recommend that the bylaw powers granted in the MGA be expanded to include environmental protection (rather than depending on less direct, general welfare provisions). It is the ELC’s view that this will provide clarity and guidance about the municipal role in environmental protection and management.

3. The MGA should expand the enforcement tools available to municipalities for the purposes of environmental protection and management.

It is our view that current enforcement tools available to municipalities are insufficient for achieving environmental protection and management. We recommend improving enforcement by establishing enforcement tools similar to those available in the Environmental Protection and Enhancement Act and aligning available municipal tools with the ALSA.

4. The MGA should expand the revenue generation options available to municipalities to enable environmental stewardship and, particularly, land conservation.

Insufficient funding impairs the ability of municipalities – both large and small – to fulfill their roles, even where municipal powers are otherwise sufficient. We recommend that the MGA be amended to enable directed revenue for environmental initiatives.

5. The MGA should enhance opportunities for public participation in municipal planning processes.

It is our view that current opportunities for public participation in municipal planning and decision-making are too limited. Early, meaningful engagement of the public in decision-making leads to processes better decisions and, accordingly, we recommend that the MGA be amended to improve public participation opportunities.

Municipalities and Climate Change

It is our view that current enforcement tools available to municipalities are insufficient for achieving environmental protection and management.Given their authority over local matters such as planning, transportation, and waste management, municipalities can play an essential role in reducing the trajectory of GHG emissions and creating resilient communities that can adapt to the changes caused by climate change.

In recognition of this important role, local and regional leaders from around the world gathered during the recent United Nations Framework Convention on Climate Change (UNFCCC)’s 21st Conference of the Parties (COP 21) Climate Change meetings in Paris. In the resulting report – Adapt. Curb. Engage. 21 Solutions to Protect our Shared Planet (Sommet des élus locaux pour le climat, 4 Décembre 2015) – numerous local climate change solutions were identified. These solutions can be broadly categorized into the development of resilience strategies and action plans, implementation of local low-emission solutions, and engagement in partnerships to work with the public, other governments, and industry.

In Alberta, the powers and activities of municipalities are governed by the Municipal Government Act (the “MGA”). Certain changes to the MGA would empower municipalities to take greater action on climate change using solutions such as those identified in the COP 21 Municipal Report. For example, implementation of local low-emission solutions focused on buildings could be facilitated by the following changes:

  • The MGA should be amended to allow municipalities to impose minimum energy requirements and minimum renewable energy standards above and beyond those imposed by the building codes adopted in the Safety Codes Act, R.S.A. 2000, S-1. This would enable municipalities to set high standards for buildings within their borders, including retrofitting of existing, inefficient buildings.
  • The MGA should expand the revenue generation options available to municipalities to enable the use of creative financing tools (such as loans repaid through property taxes or utility bills) to encourage adoption of more energy efficient or renewable energy technologies on a residential basis. Currently, municipalities are restricted as to who they can loan money and as to the purposes for which taxes can be levied.

Other important local low-emission solutions include those focused on transportation (such as redesign of traffic flows and reconfiguring urban development) and the use of green spaces. Solutions such as these can be facilitated by expressly incorporating environmental protection and management into the MGA planning provisions and by expressly allowing bylaws for environmental purposes.

Teacher’s Talk LawNow: Host an Earth Summit

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TheConstitutionalRightMap
The environment and Canada’s resource driven economy has been a recurring top story in the national news. There is currently an abundance of teachable moments to discuss the environment. The latest issue of LawNow magazine explores environmental causes and the law and is the perfect backgrounder for informed discussions about current events and environmental issues.

This Teacher’s Talk Law Now is a guide to hosting a classroom Earth Summit and how to use LawNow to direct the discussion. This lesson can be implemented in Social Studies, Science, or Legal Studies Module 2030. Teachers will portion 20 minutes of class time for five lessons to have a class discussion (and hopefully fiery debate!) on a topic from the magazine. Alternatively, this lesson could be condensed to a full single lesson dedicated to the Earth Summit. This lesson plan requires digital or printed copies of the following articles:

Hosting a Classroom Earth Summit

The Week Before

  1. Divide the students into five groups
  2. Assign each group one of the LawNow article to summarize in point form
  3. Each group should create a focus question based on the article. This focus question will provide the discussion topic. For example a focus question for the article The Constitutional Right to a Healthy Environment could be:
  • Should the right to a healthy environment be enshrined in the Canadian constitution?

Earth Summit Week

  1. At the beginning of each lesson one of the groups will spend 5 minutes explaining their article.
  2. The presenting group will lead a class discussion of the article based on their focus question.
  3. The presenting group will record important quotes from the discussion to create a poster or blog post that captures key arguments from the debate.

Extension Ideas

  • Assign each student a role as a stakeholder in environmental topics. The student will then approach each discussion question and debate from the perspective of their character.
  • Explore the topic further by streaming this Nature of Things episode on Ecuador’s groundbreaking constitution that grants rights to nature.

Viewpoint 37-4: The Economy and The Environment

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environmental causesThe economies that will dominate in the future will be those that embrace environmental challenges and see them as opportunities and not cost.

For the longest time, the message has been that dealing with environmental issues incurs a cost to the economy that will harm our competitiveness. More and more, however, there is a growing understanding that economic and environmental interests are two sides of the same coin; that we cannot really have one without the other.

The economic and other risks of the most threatening of environmental issues, climate change, are literally infinite. For those concerned that dealing with it will kill jobs, consider the number of jobs that have been killed because we have not dealt with it. Canadian forests have been diminished by the spread of the pine beetle, which is impeded by the kind of sustained cold weather that we no longer see. Canadian fisheries are producing only 40% of the harvest that they produced just years ago, stocks being damaged, at least in part, by climate change impact on their habitat. The increasingly violent, climate-change-fueled storms are creating enormous damage. Drought and floods are damaging our agricultural industry. How many jobs were lost and how much cost was incurred in New York as a result of Hurricane Sandy? The insurance industry estimates that increasingly violent storms are causing $170 billion in annual damage world-wide, four times the cost of just decades ago.

On the other hand, dealing with climate change can stimulate a productive, creative, 21st century economy. Consider the economic diversification and jobs that would be created by a focus on renewable energy development, retrofitting for conservation of energy, and the “energy” that would be generated in our country and economy by leadership inspiring us to meet this challenge.

With relatively little government investment, Ontario has created a $42 billion solar industry. And, we should not underestimate the economic significance of our tourism and out-door recreation industries, both profoundly reliant upon a pristine environment. In addition, and ironically, getting really good on climate change and other environmental issues may be the only way to sustain our traditional oil and gas economy. Canada’s single international market for oil and gas is the U.S., and the U.S. is likely to be self-sufficient in both within 10 to 15 years. Moreover, as long as we are limited to North American markets, we are losing as much as $35 per barrel compared to international prices. There is tremendous pressure to diversify our markets.

OilSands

It’s a new era. The delays to the Gateway and Keystone projects have underlined that we need to earn the social licence – society’s permission – to build our oil and gas projects and sell our traditional oil and gas products if we are to sustain this industry which is so critical to our economy. To do this, we have to demonstrate that we are serious about dealing with climate change and other environmental issues related to the industry.

There are some encouraging signs. President Obama, in his inaugural speech, emphasized the devastating impact of climate change. New York’s Mayor Bloomberg endorsed Obama in the recent election based upon his assessment that Hurricane Sandy was a consequence of climate change. The president of the IMF stated recently that the single greatest challenge to world economies is climate change. These are important calls to action.

Many leaders in Canada’s oil and gas industry are calling for a carbon tax as the most efficient way to provide them with some sense of certainty, focus the economy’s attention on reducing emissions and send a particularly powerful message to earn social licence. Increasingly, there are signs that Canadian political leaders are understanding how the environment, earning social licence and sustaining our oil and gas industry are inextricably linked.

While there are many reasons to respect and promote our environment, its importance to the economy is especially compelling. Understanding and acting upon this relationship is not an economic threat; it will herald the emergence of a competitive, sustainable economy that will be the envy of the world.

Nickel Shower: An Environmental Class Action

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373F5BannerIntroduction

The recent Smith v. Inco Limited case is the first Canadian environmental class action lawsuit to proceed through a trial and appeal. It shows how the courts mediate between the interests of industry and of private landowners.

Inco refined nickel near the small southern Ontario city of Port Colborne on the north shore of Lake Erie from 1918 to 1984. It was for many years the major employer in the area, employing as many as 2,000 people. Inco emitted nickel oxide into the air from its 500-foot smoke stack, mostly before 1960. Inco acknowledged it was the source of the nickel particulates found in the residents’ soil. In March 2001, approximately 7,040 residents brought a class action to recover damages from Inco for what they perceived was a decline in their real estate values attributed to Inco’s earlier nickel refining operations.

On July 6, 2010, a trial judge determined that Inco must pay $36 million to the landowners.

Facts

The plaintiff class was divided into three subclasses according to their proximity to the Inco refinery, which was reflected in the degree of nickel contamination. The Ontario Ministry of Environment (MOE) conducted five soil analyses from 1972 to 1998. The last test, not publicly released until 2000, showed that in many parts of Port Colborne the level of nickel in the soil far exceeded the MOE guideline. The final draft of the Human Health Risk Assessment in 2002 ordered Inco to remediate the most contaminated properties although the MOE also reported it was unlikely the nickel levels posed any risks to human health.

The class action could not prove adverse health effects suffered by any class members. Instead, it was certified on the basis of the decline of property values only. The three related intentional tort causes of action were trespass, Rylands v. Fletcher, (strict liability) (1866), L.R. 1 Ex. 265, aff’d (1868), L.R. 3 H.L. 330) and nuisance.

Trial Decision

The tort of trespass relates to any voluntary direct physical intrusion onto plaintiff land. Was the Inco discharge of nickel particulates that accumulated on plaintiff land a “direct and physical intrusion” or merely indirect or consequential? The residents could not prevent the contamination, but Justice Henderson concluded that this was not a trespass by Inco against these landowners: “the intrusion onto neighbouring properties in this case is indirect, not direct”.

What about the 1868 Rylands v. Fletcher doctrine? If the Inco refinery was a “non-natural use” of its land, it may be strictly liable to the residents.

In the 1989 Supreme Court of Canada case of Tock v. St. John’s Metropolitan Area Board, the basement of the Tock home was flooded following a heavy rain due to blockage in the storm sewer. The Court considered the provisioning of an indispensable service such as a water and sewer system as a natural use.

Justice Henderson distinguished his Inco case from the Tock case on the basis that an urban sewer system was “necessary to support urban life” but a nickel refinery was a “private, for-profit, corporation.” He continued:

The nickel was not naturally on the land, and the nickel particulates were not naturally on the land or in the air over the land. Further, the refining of nickel was not an ordinary use of the land; it was a special use bringing with it increased danger to others. This satisfies the first element of a Rylands claim.

There is debate about whether a Rylands claim is restricted to a single, isolated escape, or whether it includes ongoing escape. Inco argued that a Rylands claim should be restricted to isolated events, and since the refinery emissions occurred over a period of 66 years, this class action should be dismissed. Justice Henderson decided to interpret Rylands as including the Inco-type continuous contamination and ruled that Inco was strictly liable under the Rylands doctrine.

Was this nickel contamination also a private nuisance? For this intentional tort, the harm may be indirect, and actual damage is required. The damage might be physical (such as this nickel contamination) or a significant interference with the use of the premises. Since it was proven that “nickel has accumulated on class members’ properties to the extent that the property values have diminished,” private nuisance was established.

Calculation of Damages

Justice Henderson considered the adverse publicity from 2000 relating to the nickel contamination of the land and how that affected the property values. Real estate agents began to inform buyers about the nickel in the soil and started inserting nickel warnings into purchase and sale agreements. The MOE then requested residents to bring their garden produce and well water in for testing. Concerns were raised about the possible carcinogenic effects of nickel. Media coverage expanded from local to national. Justice Henderson concluded: “the public mood was one of extreme concern about nickel levels in the soil that could affect everything from vegetation to human health to real estate values.”

The plaintiffs did not claim that property values decreased, but rather that they did not increase commensurately over time. Experts on both sides analyzed the impact on property values using nearby Welland, Ontario, a similar city, as the benchmark. The judge said the publicity adversely affected property values. The average property value in Port Colborne should have been $169,412 in 2008 had there been no nickel contamination. The average loss was $4,514 per property. For 7,965 properties, the total amount of damages was rounded to $36 million. Inco was not assessed punitive damages.

Appeal Outcome

A unanimous decision of the Ontario Court of Appeal was released 15 months later, on October 7, 2011. On essentially every ground, the Court of Appeal reversed the lower court decision. The class of resident plaintiffs lost their claim to damages for reduced property values. Their class action was dismissed and Inco was reimbursed some of its costs for successfully defending this litigation.

The Court of Appeal found errors in every important conclusion of the trial judge. It found this not to be an actionable nuisance, and Inco was not liable under Rylands v. Fletcher. The Court said the plaintiffs did not even prove that their properties had lost any value after September 2000. Even if one assumed devaluations did occur, the Court said those devaluations would not necessarily have been caused by Inco’s discharge of nickel particles on their land. In short, the residents had failed to prove any damages.

Inco had not operated its refinery unlawfully or negligently. It complied with all the environmental and other governmental regulatory schemes applicable to its refinery operation. The emissions from the refinery did not contravene any laws.

The actual physical damage only became material more than 15 years after the refinery closed, when public anxiety negatively affected the property values. The trial judge had considered the nuisance to be caused by public alarm and not by any real physical harm. The landowners never claimed the nickel particles in the soil interfered with the use or enjoyment of their property, but only that the nickel particles was “physical injury” to their property which translated to lower property values. The Court of Appeal said that this could not be characterized as damage to the property. The trial judge was wrong to conclude the nickel particles in the soil caused actual, substantial, physical damage to the plaintiffs’ lands.

As to the Rylands v. Fletcher claim, the nickel particle emissions could not be considered to have “escaped” from the Inco refinery – they were an integral part of refinery operations and were released intentionally on a daily basis for 66 years. These refinery operations and emissions were not extra-hazardous activities or fraught with danger. They did not present an abnormal risk to neighbours. This was a natural use of Inco’s property. The Court said it is better for the legislature to regulate such business activities than having judges do it through the common law.

The Court of Appeal agreed with the trial judge that Rylands v. Fletcher should not be limited to a single isolated escape. Single escapes and continuous escapes produce the same kind of damages. But the landowners also did not sufficiently prove damages, an essential component of both causes of action.

The harm in this action related to the negative effect on property values as matched to the comparable community of Welland, Ontario. The difference of 4.3% in appreciation rates over ten years between Welland and Port Colborne calculated at trial was within the range of variance to be expected in comparable communities. Overall, the Court of Appeal, comparing the data, concluded that Port Colborne either outperformed or almost equaled Welland in terms of property appreciation over the period of comparison.

The trial decision was set aside. The residents’ application for leave to the Supreme Court of Canada was dismissed on April 26, 2012.

Conclusion

This class action case of a large group of private landowners against a powerful mining company received much publicity and many people hoped it would be the first of many similar environmental class actions prosecuted against large corporate polluters.

In the end, several lessons were learned.

  • A plaintiff always needs good evidence to win the case. Emissions, particulates and deposits on your land or your body must be clearly shown to be harmful in some way in order to win damages. Businesses that exceed government guidelines for emissions do not suffer automatic civil liability. Widespread public concern, adverse publicity and controversy will not furnish a legal remedy without further legal or causal foundation.
  • Legal remedies can’t be based on emotion. A chemical alteration in the content of soil may not amount to physical harm or damage to the property. Businesses, factories and refineries – especially those that operate in the community for a long time under the law – may not be inherently dangerous or making non-natural uses of the property upon which they are operating. It may be hard to win devaluation of property lawsuits in Canada without strong evidence and data sets must be accurate and complete.
  • Finally, one must be aware of the impressions created, especially in a large class action lawsuit. The Ontario Court of Appeal noted that Inco remediated 24 of the 25 properties it had been ordered to do by the MOE. Ms. Smith, the owner of the last property named in the MOE order, never permitted remediation as ordered by the MOE, never sold her property and therefore never actually suffered any actual loss of value. As the lead plaintiff in this class action, her own claim may not have appeared particularly strong.

The Difference a Year Makes: Changes to Canadian Federal Environmental Assessment Law in 2012

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373F4BannerIn 2012, the landscape of Canadian federal environmental assessment law was completely altered. Following on the heels of a truncated statutory review process in late 2011, federal environmental assessment law was re-written with the passage of Bill C-38 (the federal omnibus budget bill). This article will provide an overview of the statutory review process and the legislative changes to federal environmental assessment law and introduce A Model Environmental and Sustainability Assessment Law recently published by the Environmental Law Centre (ELC). The Model Law is available with or without annotations on the ELC website.

The Statutory Review Process

The first statutory review of Canadian Environmental Assessment Act, S.C. 1992, c.37 (CEAA) was commenced in 2000. That process took over a year and included extensive consultations with the public, stakeholders, Aboriginal communities and governments, and provincial and territorial governments throughout Canada. The process was used as an opportunity to conduct a thorough review and to learn from experience under CEAA.1

The second, most recent review of the provisions and operation of CEAA was due to be conducted in 2010. The statutory review process got off to a late start and was conducted over a very short period in late 2011. In stark contrast to the first statutory review, the most recent review process took a matter of weeks resulting in a cursory, scattered review of CEAA.

The House of Commons Standing Committee on Environment and Sustainable Development issued its report entitled Statutory Review of the Canadian Environmental Assessment Act: Protecting the Environment, Managing our Resources in March 2012. The report contains 20 recommendations which are ostensibly designed to “streamline” the federal environmental assessment process.2 Ultimately, many of the Standing Committee’s recommendations made their way into the new federal environmental assessment law.

Changes to Federal Environmental Assessment Law

With the passage of Bill C-38, the previous CEAA was repealed and replaced with the Canadian Environmental Assessment Act, 2012 Ch. 19, s.52 (CEAA 2012). The CEAA 2012 – along with the Regulations Designating Physical Activities, the Prescribed Information for the Description of a Designated Project Regulations and the Cost Recovery Regulations – came into force on July 6, 2012.

The New Federal Environmental Assessment Process

The new federal environmental assessment process adopts a project list approach for determining which projects will be subject to environmental assessment. Under CEAA 2012, only those projects designated by the Regulations Designating Physical Activities (RDPA) or designated by the Minister of Environment on a discretionary basis may be subject to federal environmental assessment.

A project that is not on the RDPA but is designated by the Minister of Environment on an ad hoc basis must undergo a federal environmental assessment.3 As well, a limited number of projects on the RDPA are linked to either the Canadian Nuclear Safety Commission (CNSC) or the National Energy Board (NEB) and must undergo a federal environmental assessment by the CNSC or NEB as appropriate.4

All other projects on the RDPA are linked to the Canadian Environmental Assessment Agency (CEA Agency) and may or may not undergo a federal environmental assessment. Proponents of such projects must submit a project proposal to the CEA Agency, the contents of which are dictated by the Prescribed Information for the Description of a Designated Project Regulations. Once the project proposal is complete, the CEA Agency determines whether or not a federal environmental assessment ought to occur.

At this point, a federal environmental assessment may not proceed because the Agency determines that there there are no adverse environmental effects. As well, the federal government may decide not to conduct its own environmental assessment on the basis that the project is being assessed using a provincial process that is substituted for or deemed equivalent to the federal process.

If the CEA Agency has determined that a federal environmental assessment is required, one of two kinds of environmental assessment may occur: a standard environmental assessment5 or assessment by review panel (s.38). Once the environmental assessment is complete, the appropriate body (the CEA Agency, CNSC, NEB or the review panel) must prepare a report, which is used to determine whether or not the project will cause significant adverse environmental effects.

If the project is determined to cause significant adverse environmental effects, the matter is referred to the federal Cabinet to decide whether or not those effects are justified in the circumstances (s.52). Finally, a decision statement which indicates the decision made in relation to the project (including any conditions that must be met by the project proponent) is issued (s.54).

How Does CEAA 2012 compare to the previous CEAA?

There are several significant differences between the previous CEAA and CEAA 2012. The number and scope of assessments conducted under CEAA 2012 will be reduced compared to the previous CEAA. There are also significant procedural differences between the previous CEAA and CEAA 2012, including changes to the types of environmental assessment, the federal authorities conducting assessments and public participation opportunities. As well, CEAA 2012 introduces legislated timelines and the mechanisms of substitution and equivalency.

Changes to the Number and Scope of Assessments

The previous CEAA applied to all projects that had a federal trigger (unless specifically excluded). This meant that a federal environmental assessment was required for all projects which triggered CEAA by virtue of involving the federal government as proponent, federal lands, a prescribed federal permit or federal financial assistance. In contrast, under CEAA 2012, only those projects designated by the Regulations Designating Physical Activities may be subject to a federal environmental assessment. In addition, the Minister has the discretion to designate a particular project for federal environmental assessment on an ad hoc basis.

The effect of these changes to federal environmental assessment law means that fewer projects will be assessed. Fewer projects will fall into the purview of CEAA 2012 than with the previous CEAA. Further, even those projects which do fall into the purview of CEAA 2012 may be excused from a federal environmental assessment at the discretion of the CEA Agency or the Minister.

The scope and content of federal environmental assessments is also reduced under CEAA 2012. Consideration of environmental effects under CEAA 2012 is limited to effects on fish and fish habitat, aquatic species at risk, migratory birds, federal lands and aboriginal peoples. As well, a federal authority6 must consider changes to the environment that are “directly linked or necessarily incidental” to that federal authority’s exercise of power in relation to the project. This contrasts to the previous CEAA, which considered effects to all aspects of the environment: land, water, air, organic and inorganic matter; all living organisms; and interacting natural systems.

While the factors that must be considered in the course of a federal environmental assessment remain largely unchanged from the previous CEAA, there are a few significant differences. The previous CEAA required consideration of the need for the project and alternatives to the project. There is no longer a requirement to consider these factors in the course of a federal environmental assessment despite both factors being key considerations for achieving sustainability. As well, the requirement to consider the capacity of renewable resources that are likely to be significantly affected by the project to meet present and future needs is removed from CEAA 2012.

Procedural Changes under CEAA 2012

As mentioned above, there are two kinds of environmental assessment under CEAA 2012: a standard environmental assessment or assessment by review panel. This contrasts with the previous CEAA, which had several forms of environmental assessment: screenings, comprehensive studies, panel reviews or mediation.

Under the previous CEAA, numerous federal departments were responsible for conducting environmental assessments. In contrast, under CEAA 2012, a federal environmental assessment may be conducted only by the CEA Agency, CNSC, NEB or review panel.7

Legislated timelines for completion of an environmental assessment have been introduced by CEAA 2012.8 The Act requires that a standard environmental assessment be completed within 365 days, an environmental assessment by the NEB be completed within 18 months and an environmental assessment by a review panel be completed within 24 months.9

Under CEAA 2012, a federal environmental assessment may be avoided by allowing a provincial assessment process to be substituted or deemed equivalent. In the case of substitution, the federal government considers the provincial environmental assessment and makes its own decision (i.e., the provincial assessment alone fulfills the requirements of CEAA 2012). In the case of equivalency, the federal government relies entirely upon the provincial environmental assessment, including the ultimate decision (i.e., the project will be exempt from CEAA 2012). The mechanisms of substitution and equivalency under CEAA 2012 are a marked departure from the use of coordination and harmonization under the previous CEAA.

The previous CEAA required that environmental assessments were to provide opportunities for public participation. The term public was not restricted in any manner. In contrast, under CEAA 2012, public participation in environmental assessment processes conducted by the NEB or a review panel is limited to interested parties.10 An interested party is defined as any person who is directly affected by the project or has relevant information or expertise.

The ELC’s Model Environmental and Sustainability Assessment Law

Recently, the Environmental Law Centre published A Model Environmental and Sustainability Assessment Law. It is the ELC’s goal that the model law will be used by both provincial and federal governments to improve Canada’s environmental assessment processes. The ELC thanks its funders – the Alberta Ecotrust Foundation and the Alberta Law Foundation – for supporting this project.

The Model Law:

  • incorporates environmentally sound principles, enabling sustainable decision-making to become part of Canada’s landscape;
  • embraces sustainability as its core objective;
  • provides strong rights for public participation;
  • provides fair, predictable and accessible assessment procedures; and
  • provides a legal framework for strategic and regional assessment. These types of assessments enable consideration of environmental and sustainability impacts at a policy, planning or regional level to provide a strategic framework for subsequent project-based assessments.
Notes

1 For a brief description of the statutory review process conducted in 2000, see Arlene Kwasniak, “Canadian Environmental Assessment Act: Five-Year Review (2000) 15 Newsbrief 1.

2 For the ELC’s discussion of the Standing Committee’ Report see our March 21, 2012 blog post entitled Standing Committee on Environment and Sustainable Development issues its Report on the CEAA Seven Year Review (http://environmentallawcentre.wordpress.com/2012/03/21/standing-committee-on-environment-and-sustainable-development-issues-its-report-on-the-ceaa-seven-year-review/).

3 Ibid., s. 15.

4 Ibid., ss. 13 and 15.

5 Conducted by the CEA Agency, the CNSC or the NEB.

6 Federal authority is defined by s. 2, supra. note iii. A federal authority includes Ministers, government agencies, parent Crown corporations, departments or departmental corporations, and designated bodies.

7 Currently, the only designated authorities are the CEA Agency, CNSC and NEB. The Act leaves open the possibility of other federal authorities being designated by the RDPA.

8 Under the previous CEAA, there were no timelines set by the Act itself. However, the Establishing Timelines for Comprehensive Studies Regulations did place timelines on the completion of comprehensive studies.

9 If a review panel fails to meet this timeline, the review panel is terminated and the environmental assessment is completed by the CEA Agency (supra. note iv at ss. 49 and 50). The legislated timeline for the CNSC is 24 months as set by the Regulations Amending the Class 1 Nuclear Facilities and Uranium Mines and Mills Regulations (Legislated Timelines) SOR/2012-288.

10 This definition is not applicable to environmental assessments by the CEA Agency or by the CNSC, see supra. note iv at s. 2(2) and s. 15(b).

Civil Disobedience, Environmental Protest and the Rule of Law

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373F3BannerWhat is civil disobedience?

Civil disobedience involves intentional violation of the law to achieve a result the law-breakers believe is in the public interest. Civil disobedience is a form of protest intended to draw attention to a wrong or injustice which the protesters believe is sufficiently serious to morally justify violation of the law. In 2008 Greenpeace activists unleashed a banner at a political meeting which said “Stelmach: the best Premier oil money can buy” during a speech by then Premier Ed Stelmach. In doing so, the protesters intentionally violated several laws, including criminal trespass – they had no legal right to be at the meeting or do what they did. But in their view, their actions were morally justified because the government led by Stelmach was complicit in the environmental harm caused by oil production.

According to Roberta Lexier civil disobedience is typically defined as “a public, non-violent and conscientious breach of law undertaken with the aim of bringing about change in laws or government policies.”1 As Lexier says, the goals of civil disobedience are “to publicize an unjust law or a just cause” and “to appeal to the conscience of the public” so as “to end complicity in the injustice which flows from obedience to unjust law.” Sometimes the goals are more strategic, that is, aimed at pressuring the authorities to take a particular step towards alleviation of the injustice, for example, in Lexier’s words, “to force negotiation with recalcitrant officials.” Recent road obstructions by some Aboriginal groups as part of Idle No More were undertaken with the goal of pressuring government officials – in particular, the Prime Minister and the Governor General – to agree to meet with certain chiefs. Civil disobedience can also be aimed at disrupting the process by which people who have violated an unjust law are prosecuted, for example, by encouraging so many people to defy the law that the authorities are overwhelmed by their number. As Lexier puts it, the goal in this context is to “clog the machine.”

Direct versus indirect civil disobedience

Sometimes the law violated in a civilly disobedient action is the very law that protesters seek to change. This was the case in an iconic instance of civil disobedience when in 1955 a young black woman, Rosa Parks, defied the Montgomery, Alabama law requiring city buses to be racially segregated by confining black passengers to the back of the bus. When she was asked to vacate her seat, in the first row of the back section, because a white man wanted to sit as close to the front of the bus as possible, she refused. Her conviction for violating the law led to a boycott of the city’s bus system and eventually to repeal of that law.

But the wrongness of a law or government policy cannot always be highlighted directly, that is, by violation of that very law or policy. Take for example, the recent legislative changes which weaken protection for Canadian waterways and are of particular concern to the Idle No More movement. Bill C-45, the 2012 omnibus bill removes many bodies of water from consideration under the Navigable Waters Protection Act. Unlike a legal command, such as “black people must sit at the back of the bus,” a law which removes statutory protection cannot itself be violated. Other means must be found, such as obstruction of roads or the occupation of government offices. The latter technique was used in 2009 when protesters sought to convince then federal environment minister, Jim Prentice, to take serious measures to counter climate change by illegally occupying his constituency office in Calgary.

Public opinion and civil disobedience

Non-violence, as Lexier notes, is usually cited as a defining characteristic of civil disobedience. Some challenge this requirement. However, not only is violence probably contrary to the very concept of civil disobedience, it is also likely to prevent achievement of protesters’ goals. Thinking strategically, are ordinary people more or less likely to be inspired to demand the legal or policy change protesters believe is needed if the disobedience is violent? In stable democracies such as Canada, the U.K. and the U.S. – where mass disorder and public displays of violence are rare – the public’s response to violence is likely to be highly negative, and thus, violence is likely to hinder rather than help advance protesters’ goals. If it is important to appeal to “the conscience of the public” and to “end complicity” with injustice, then how the public is likely to react to the protest must be taken into account.

Also important is that public opinion changes over time. For example, when suffragettes broke laws to protest the fact that women did not have the right to vote, many people were horrified and denied that what protesters had done was justified in the name of achieving reform of Canadian voting laws. But of course, it was not long before the fact that women had ever been denied the right to vote seemed ludicrous, itself completely beyond the pale.

The law on civil disobedience

From one point of view, the law on civil disobedience is quite straight-forward. By definition civil disobedience involves a deliberate breaking of the law. The activists occupying the environment minister’s Calgary office had no authority to obstruct the use of that office. Such protesters, if prosecuted, will be convicted, unless a court decides the law in question is unconstitutional, which happens only rarely. The fact that the law was broken to point to a serious problem – Canada’s refusal to take significant steps to limit climate change – would not be relevant to a conviction. It is well-established in Canadian law that motive – the reason people break the law – is irrelevant to guilt or innocence.

But other legal issues about civil disobedience are more difficult. For example, when civil disobedience is non-violent and respectfully undertaken – for example, by giving the authorities advance notice of actions which will inconvenience the public – is it in the public interest that activists should be charged? What should the answer depend upon: how long the protest goes on; how many people are inconvenienced by it; whether there is damage to property as a result; or some other factor?

Civil disobedience and environmental issues

The history of civil disobedience shows it has been used to advance some of the most pressing public policy issues of the day – for example, the right of women to vote, desegregation of the American South and the need to end Apartheid in South Africa. When legal measures – such as petitioning, legal marches and political campaigns – have been exhausted, people convinced their cause is just may resort to violation of the law to try to move the consciences of their fellow citizens. Currently, many Canadians believe the environmental crisis is so severe they are prepared to break the law to prevent further degradation, for example, by obstructing the construction of additional pipelines, or at least to support those willing to do so.

Civil disobedience has upon occasion contributed a great deal to improving the human condition. It will do so again.

Civil disobedience and the rule of law

Part of what makes Canada a better place to live than many other countries is that Canadians have a relatively strong commitment to the rule of law. Disputes in the public realm – for example, whether houses will be torn down to make room for a new transit line or highway – are settled with reference to publicly agreed upon laws made by democratically elected representatives. Many disputes in the private realm – for example, which parent gets custody of the children upon divorce – are also subject to decision according to law.

A recognition that civil disobedience can play a healthy role in Canadian society does not undermine the rule of law. Quite the reverse, actually. For the citizens of a country to respect law, their legal and governmental systems must, on the whole, seem legitimate to them. When a law is so offensive to the conscience of a significant number of people that they are willing to engage in or support the breaking of that law, then society as a whole is put on notice that change may well be needed.

Our legal and governmental systems are not perfect, and they never will be. But where imperfections are serious, it is right – not wrong – to take a stand against them. A conscientious citizen should not abide by a law or policy that is profoundly unjust. Civil disobedience can strengthen the rule of law by leading to the correction of unjust or seriously wrong laws before disrespect for the system as a whole has a chance to take hold.

Notes

1. See Roberta Lexier’s presentation: “What is civil disobedience? How has it be used historically? which was presented in 2012 at events organized by the Sheldon Chumir Foundation for Ethics in Leadership.

 

The Oil Sands: Westward – How?

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373F2BannerLast summer, I mentioned to our editor that I couldn’t understand why Enbridge chose to route Alberta oil via its Northern Gateway line to Kitimat, with its long and narrow channels to open water, when the Port of Prince Rupert had no such obstacles and was closer to Asia. She told me to find out. Of the three troubling factors about Northern Gateway that I saw at the time, that was the most troubling.

Northern Gateway would send oil sands product almost 1200 km from a collection point at Bruderheim, 60 km northeast of Edmonton, to tidewater at Kitimat at the head of Douglas Channel. 525,000 barrels a day (bpd) of bitumen, thinned with condensate to facilitate flow, would be sent through a 36” line, and 193,000 bpd of condensate would be returned by a 20” line. Thinning is needed because the oil sands don’t produce oil; they give up bitumen, a viscous substance described as like cold molasses, from which crude is produced by upgrading. The lines would be buried a metre underground in a 25 m-wide corridor. Cost is now estimated at $6.5 billion. Shipping from Kitimat would require tankers to negotiate the narrow waters of Douglas Channel to reach open water. Freight has travelled to and from Kitimat by water since an aluminum smelter was built there in the 1950s, but oil is another matter.

Objections to Northern Gateway were three-fold:

  • It provided a market for the oil sands, which should, environmentalists say, be discouraged;
  • It was to be a pipeline through pristine wilderness; and
  • A marine spill is inevitable in the long and narrow Douglas Channel.

I saw the last as the most serious objection. As to the others, whatever one’s judgment of the oil sands, their future does not turn on Northern Gateway’s completion. The merits of their development are a topic in themselves, and not for this article to assess. The pipeline, in part through wilderness to be sure, would be certain to be built to the highest modern standards; Enbridge, embarrassed by spills from older lines, mainly into the Kalamazoo River in Michigan, could hardly afford any risk. Spills may be less of a concern than the effect of a corridor on wildlife. Caribou are reluctant to cross open areas, where wolves lie in wait. Nevertheless, many pipelines already criss-cross this country, as do, of course, transmission and rail lines and highways. It may turn out that the currently vocal but not unanimous First Nation objections can be met and accommodated, or silenced by equity participation. So if the terminus could be moved to the open water of Prince Rupert, perhaps this project would be less the disaster some predict.

Enbridge tells me the Prince Rupert route is “not impossible,” but its litany of engineering hurdles is lengthy. It asserts that a 150 km route down the Skeena River from Terrace would be 65 km longer and entail a 20 km tunnel and a river crossing, and that the route is susceptible to flooding from the Skeena freshet and prone to landslides and seismic activity. It claims negligible navigational risk for Kitimat using double-hulled towed and escorted tankers, and that the narrowest point in a 36 m-deep, 130 km long channel, 1.4 km, does not present undue risk. A Transport Canada review, acknowledging “there will always be residual risk,” has endorsed the scheme. So the trade-off for Enbridge favours Kitimat. It is apparently prepared to weather the gale of objections already raging to the carriage of oil in B.C.’s coastal waters, though last November Al Monaco, the new president, said the decision was not final. For organizations such as Greenpeace, ForestEthics and Ecojustice, and much of the public, any risk in these waters is too great.

In the context of alternative ports, Enbridge’s pipeline competitor TransCanada Corporation has just announced a line to transport B.C. shale gas to a liquid natural gas terminal to be built at Lelu Island, just south of Prince Rupert, probably the closest mainland-accessible point in Canada to Asia. However, it may not follow the Skeena River to its destination. While the route has not been announced, there is speculation, so far unconfirmed, that the line may take a more northerly Nass Valley route to tidewater, then by a long underwater line to the terminal. If TransCanada is indeed considering this expensive bypass of the Skeena for a gas line, Enbridge’s wariness is understandable. Pacific Northern Gas has operated a natural gas line in the Skeena valley since 1968, but it has ruptured from slides more than once. A break in a gas line is not a disaster; the gas dissipates. A large oil spill in a major fast-flowing river is apocalyptic.

A few months ago, there seemed to be just three main issues. Since then, things have gotten more complicated. The federal government has become ever more determined to find off-shore markets for Canadian crude since the completion of TransCanada’s Keystone XL line to the Texas gulf coast was put in doubt by the U.S. election. President Obama’s emphasis on the environment in his inauguration speech did not help. The possibility of off-shore sales would result in a major increase in revenue; the current price for Alberta oil is well short of the world price because of the “captive market discount”: the market is landlocked to central North America. 99% of Canada’s crude oil exports are to the U.S. The Globe and Mail reported recently that the price for Canadian heavy oil was nearly $37 (U.S.) below the North American benchmark West Texas Intermediate, resulting, according to Alberta’s Energy Minister Hughes, in a subsidy to the U.S. of $20 to $30 billion annually. The development of “fracking,” hydraulic fracturing, whereby previously unavailable hydrocarbons are now recovered by the injection of water under high pressure to induce their release, has led the International Energy Agency to predict that the U.S. will become “all but self-sufficient in net terms” in energy by 2030. Though environmentalists tell us that fracking will lead to contaminated water tables and aquifers, it is now widely practised, and U.S. self-sufficiency is not good news for Alberta. Given the importance of the oil sands to Canada’s current economy, bad news for Alberta is bad news for Canada.

First Nation objections to Northern Gateway have the most impact. Under the consultation and accommodation obligation on government laid down in 2004-05 by the Supreme Court (see LawNow November/December 2007), First Nations must be consulted in advance of any activity that might adversely affect their Aboriginal right to hunt or carry out other traditional activities, and valid concerns must be reasonably accommodated. These will be formally identified in the National Energy Board and Canadian Environmental Assessment Agency’s Joint Review Panel process. While the duty to consult and accommodate is the Crown’s, to be carried out prior to granting any authority to proceed, in practice a proponent will typically offer a variety of advance inducements to secure Aboriginal support. While Enbridge declines to disclose detail, its public position is that it expects its offers of equity positions to attract the support it desires. It also funds participation in the consultation process. Under the Supreme Court’s doctrine, First Nations do not have a veto, but court challenges to the adequacy of consultation and appropriateness of accommodation could tie matters up for years. The issue is further complicated by the perhaps sincerely-held but incorrect belief that the UN Declaration on the Rights of Indigenous Peoples, is binding in Canada. Canada’s endorsement in the absence of ratifying legislation has no legal force (see LawNow March/April 2011), but may have a good deal of political weight.

Northern Gateway has attracted much of the public’s attention, not to mention opposition, perhaps because it was the first proposal to connect Alberta to Asia. Enbridge, though, is by no means alone in trying to fill that need – if indeed it is a need. Oil sands objectors would vehemently disagree. Kinder Morgan, a huge Houston-based energy company, operates the 1150 km Trans Mountain oil pipeline that has transported both crude and refined oil in “batches” at 300,000 bpd since the 1950s. In January, Kinder Morgan announced plans to expand and twin Trans Mountain to 890,000 bpd. As the only existing oil pipeline to Canada’s west coast, expansion has a great competitive advantage over a new line. The corridor and terminal already exist, though expansion to increase capacity three-fold would be an undeniably major project. Nevertheless, the environmental assessment and aboriginal consultation requirements for expansion within an existing corridor would be far less than for the new largely wilderness corridor needed for Northern Gateway – “brownfield,” as they say, rather than “greenfield.” A major issue would be the increase in tanker traffic the full length of Vancouver Harbour – Burnaby to English Bay – from five vessels a month to 34, more than one a day. The proposal can be expected to meet stiff opposition in the Lower Mainland. Kinder Morgan’s spill record is less than perfect: it won’t help that six hours elapsed before an operator attended to a 90,000-litre spill at its Sumas tank farm in the Fraser Valley a year ago. As a “mere” upgrade, Trans Mountain has so far evaded much scrutiny, criticism remaining focussed on Enbridge. The least that can be said now is that Northern Gateway has a full set of challenges, both for approvals and from competition.

Pipelines are not the only route to offshore markets. Some odd alternatives are mooted. A First Nations-endorsed company called G Seven Generations Ltd. wants to build a 2,400 km rail line to haul oil from Fort McMurray to connect with the Alaska North Slope line to Valdez, Alaska, where it would take advantage of existing infrastructure and supplant the apparently declining supply of Alaska crude. G7G claims a single track could carry an incredible three times the capacity of Northern Gateway, and says it has major support for the route. Rail is a less efficient, more costly, more polluting and far riskier means of shipping oil than pipelines, but has acquired appeal for shippers as a result of environmental opposition to pipelines, as well as its flexibility in moving oil quickly to markets to which no pipeline exists. The advantage of building an $8.4 billion rail line to Alaska when CN’s line through Edmonton to Prince Rupert presumably stands ready is not obvious. G7G’s answer may be that only a dedicated line would have the needed capacity. In any case, rail is another competitor to Northern Gateway. So are proposals to move oil eastward by new or redirected pipelines, either to Churchill or to Saint John – closer to India, it has been pointed out, than is Kitimat. Finally, the Alberta government has recently said it would like to see a refinery built in the province, though in March 2012 it rejected a First Nations proposal to build one. This would increase revenue and produce jobs, and eliminate the shipping of bitumen and the twinning of lines, though the major cost of refinery construction makes it unlikely. In August, David Black, a B.C. newspaper magnate, proposed a refinery for Kitimat, though nothing has been heard of this since. Certainly crude is safer to ship than bitumen, but it makes sense to upgrade at the initial stage rather than the midpoint, if only to obviate the need for twin lines.

Like so many Canadian energy projects, Northern Gateway cannot escape constitutional wrangles. British Columbians see more risk than reward in a new pipeline, especially given the tortuous Douglas Channel route to the Pacific. B.C. Liberal Premier Christy Clark, facing an election in mid-May in which she will have an uphill fight against the NDP headed by Adrian Dix, has to balance Aboriginal opposition and the strong environmental sympathies of many British Columbians with the pro-development weight of the business lobby. Clark, arguing that the rewards are Alberta’s while the risks fall to B.C., famously demanded a share of Alberta’s royalties as the price for allowing Northern Gateway to proceed. Premier Redford told her to get lost, at which point she turned to Enbridge for compensation based on the risk to B.C. Clark wants to gain enough from Enbridge to ensure the survival of her government. Dix is resolutely opposed. The federal government badly wants access to Asia for Alberta oil, so if Dix becomes premier and sticks to his guns, a federal-provincial battle is inevitable. While the overall project is federally regulated, many provincial permits will be required at various stages. Under s. 92.10 (a) of the Constitution Act, 1867, works connecting provinces are excluded from provincial jurisdiction. If, however, Ottawa were to dispute the permitting authority B.C. will certainly attempt to assert, the Conservatives will see a donnybrook to rival that of the National Energy Program of 1980, this time alienating B.C. to favour Alberta.

Despite the array of obstacles, Enbridge appears to be confident of NEB – or Cabinet – approval. Beyond the $300 million the review process is said to be costing, it plans to gamble another $150 million on pre-approval engineering studies. Under the Canadian Environmental Assessment Act, 2012 (part of omnibus “budget” Bill C-38), Cabinet can now approve a project rejected by the NEB. Asked about the government’s position on Northern Gateway, Prime Minister Harper, in a startling conversion, promised that any decision would be based on “science.” One is entitled to be sceptical; as one right-leaning columnist put it recently, “the Conservatives [have] revealed an almost monomaniacal obsession with easing resource extraction for purposes of bolstering future economic growth.”

Increasingly, though, the focus is shifting to a Canada-wide petroleum strategy. Northern Gateway is now far from the only game. Premier Redford has called for a national energy strategy, though she insists on calling it “Canadian” to stress the role of the provinces. Gil McGowan, President of the Alberta Federation of Labour, has argued for oil being sent to central and maritime Canada. Not to be left behind, Enbridge plans to reverse the flow in its “Line 9” from Sarnia to Montreal to allow western crude now reaching Sarnia to be refined in Quebec. Natural Resources Minister Oliver says this would show eastern Canadians the benefits of Alberta oil sands development. TransCanada, too, is considering converting its underused 1950s-built “Mainline” gas line from Alberta to the east to oil. It is reported to be exploring the economics of supplying China from Canada’s Atlantic seaboard. In a speech in May, David Dodge, former Bank of Canada Governor, said Northern Gateway faces too many obstacles, and Alberta oil should be shipped east. In June, Frank McKenna, former premier of New Brunswick and deputy chair of TD Bank Group, called for a coast-to-coast pipeline. Regions would no longer be at odds; “each region would be a winner.” Pointing to the irony that eastern refineries process only imported oil, while Canadian oil is captive to discounted U.S. prices, he argued that a national oil connection would be the 21st century equivalent of the C.P.R. This would eliminate reliance on imported oil, yet provide for export of surplus. The economics of this await analysis. Perhaps Canada will yet choose to upgrade our resources so that we will no longer be known as just hewers of ore and drawers of oil.

The Constitutional Right to a Healthy Environment

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373F1BannerFifty years ago, the concept of a human right to a healthy environment was viewed as a novel, even radical, idea. Today it is widely recognized in international law and endorsed by an overwhelming proportion of countries. Even more importantly, despite their recent vintage, environmental rights enjoy constitutional protection in over 100 countries. These provisions are having a remarkable impact, including stronger environmental laws, better enforcement of those laws, landmark court decisions, the cleanup of pollution hotspots, and the provision of safe drinking water.

Canada, unfortunately, is a holdout. Our Constitution does not mention the environment, and Canada is one of a dwindling number of countries that refuse to recognize the right to a healthy environment. There are six compelling reasons why Canada needs to modernize its Constitution to include this fundamental human right.

First, Canada trails behind other countries when it comes to protecting the environment. According to the Conference Board of Canada, we rank 15th out of 17 large, wealthy, industrialized countries on a comprehensive index of environmental performance indicators. A study done by Simon Fraser University researchers ranked Canada’s environmental record 24th out of 25 nations in the Organization for Economic Cooperation and Development. Our magnificent natural heritage is at risk.

Second, our poor environmental record inflicts a high cost on human health and well-being. The World Health Organization estimates that 30,000 premature deaths in Canada each year are caused in whole or in part by environmental hazards. This eye-opening figure is consistent with research done by the Canadian Medical Association estimating that air pollution alone causes tens of thousands of premature deaths (and billions of dollars in preventable health care costs) annually.

Third, the Constitution’s silence on environmental protection has been acknowledged as problematic for more than 100 years. Back in 1912, Prime Minister Laurier’s Commission on Conservation reported that constitutional uncertainty about environmental protection was undermining efforts to address water pollution. In 1997, the Supreme Court of Canada came within a whisker of striking down critical provisions of the Canadian Environmental Protection Act because of the absence of a clear constitutional basis for the law.

Fourth, environmental rights and responsibilities have been a cornerstone of indigenous legal systems for millennia. For the Haida, the Anishinabek, and the Mi’kmaq, the Earth’s sentience creates corresponding rights and obligations for both humans and Nature. As the Supreme Court of Canada has repeatedly observed, incorporating indigenous law into the Canadian legal system is an important step toward reconciliation with Aboriginal people.

Fifth, as of 2012, 177 of the world’s 193 UN member nations recognize this right, either through their constitutions, environmental legislation, court decisions, or ratification of an international agreement (see Map 1). The only remaining holdouts are the U.S., Canada, Japan, Australia, New Zealand, China, Oman, Afghanistan, Kuwait, Brunei Darussalam, Lebanon, Laos, Myanmar, North Korea, Malaysia, and Cambodia. The rapid spread of this right is remarkable, given that its first formal articulation came just 40 years ago in the Stockholm Declaration that emerged from the first global earth summit. Today, citizens in 108 nations – from Argentina to Zambia – enjoy a constitutionally protected right to a healthy environment. In more than 100 countries, the right is explicitly recognized in environmental legislation. As well, 120 countries – in Europe, Latin America, Asia, and Africa – have signed legally binding human rights treaties that include the right to a healthy environment.

Sixth, an overwhelming majority of Canadians – over ninety percent – believe that governments should recognize their right to a healthy environment. Indeed, a majority of Canadians erroneously believe that the right to a healthy environment is already included in the Charter of Rights and Freedoms.

 

Would constitutional recognition of environmental rights and responsibilities make a difference in Canada? Based on our own experience with advances in respect for human rights since repatriation of the Constitution in 1982, and the experiences of other nations where the right to a healthy environment enjoys constitutional status, the answer is definitely yes. There has been tremendous progress in protecting certain human rights in Canada since 1982, as demonstrated by the sea change in respect for Aboriginal rights and the affirmation – both legal and, more importantly, cultural – of same-sex marriage.

New evidence from across the globe demonstrates that constitutional environmental rights and responsibilities are a catalyst for stronger environmental laws, better enforcement of those laws, and enhanced public participation in environmental governance. Most importantly, there is a strong positive correlation between superior environmental performance and constitutional provisions requiring environmental protection. For example, nations with green constitutions have smaller ecological footprints and have reduced some types of air pollution up to ten times faster than nations without environmental provisions in their constitutions. Ultimately this means people are breathing cleaner air, drinking safer water, and living in healthier environments.

For example, citizens living in what was once one of the most polluted watersheds in Argentina used their constitutional right to a healthy environment to compel federal, provincial, and municipal governments to undertake

TheConstitutionalRightMap

an unprecedented cleanup and restoration effort. Collectively, these governments are spending more than $1 billion annually over a period of ten years to upgrade drinking water and sewage treatment infrastructure, improve environmental monitoring and enforcement, and restore the health of both residents and the Riachuelo River. By comparison, Canada’s efforts to clean up pollution and contaminated areas around the Great Lakes are slow and grossly inadequate, creating ongoing environmental hazards for people living in that region.

Although Canada’s Constitution is silent on environmental protection, the right to a healthy environment is recognized in five provinces and territories. Quebec put the right into its Environmental Quality Act in 1978 and added it to its provincial Charter of Human Rights and Freedoms in 2006. Ontario enacted a comprehensive Environmental Bill of Rights in 1993. The Yukon, NWT, and Nunavut have modest environmental rights legislation. In 2011, with the unanimous support of the opposition parties, Parliament came very close to passing Bill C-469, the Canadian Environmental Bill of Rights.

While these laws are better than nothing, they are far weaker legally, politically, and symbolically than constitutional recognition of the right to a healthy environment. The Constitution is our highest and strongest law, as all laws, regulations, and policies must be consistent with it. On a deeper level, constitutions reflect the most deeply held and cherished values of a society. As a judge once stated, “a Constitution is a mirror of a nation’s soul.”

There are three ways that the right to a healthy environment could gain constitutional recognition in Canada:

  • direct amendment of the Constitution, requiring Parliament’s approval and the support of seven of the ten provinces, secured within a three year period;
  • litigation resulting in a court decision that there is an implicit right to a healthy environment in s. 7 of the Charter (the right to life, liberty, and security of the person); and
  • a judicial reference resulting in a court decision that there is an implicit right to a healthy environment in s. 7 of the Charter.

Constitutional change is always difficult in Canada, though not impossible. There have been 11 amendments since 1982 including two revisions of the Charter. However, given the position of the current majority government, an environmental amendment is unlikely in the short term.

There is a case before the courts in Ontario in which Ada Lockridge and Ron Plain, members of the Aamjiwnaang First Nation, are arguing that the Ontario government’s decision to allow additional pollution from a Suncor refinery near their community violates their rights to “life, liberty, and security of the person” and equality under the Charter. In essence, their argument is that the Charter contains an implicit right to a healthy environment. Although they face an uphill battle, their case is buttressed by the fact that courts in at least twenty other nations have concluded that the right to life includes an implicit right to a healthy environment.

The judicial reference is a uniquely Canadian legal process through which the federal, provincial, and territorial governments have the power to ask courts to answer important legal questions. The process has been used over a hundred times to address controversial issues including the ownership of offshore natural resources, the legality of Quebec secession, and same-sex marriage. The most famous judicial reference is the Persons’ Case, brought in the late 1920s in response to a compelling public campaign led by Nellie McClung. The federal government asked the Supreme Court of Canada to determine whether women were persons for purposes of being eligible for appointment to the Senate. The Court, infamously, said no. Fortunately, at that time Supreme Court decisions could be appealed to the Judicial Committee of the Privy Council in the U.K. Common sense prevailed, women were recognized as persons, and the case marked a watershed moment in the battle for women’s rights in Canada. A Canadian government could ask the courts whether the right to a healthy environment is implicit in the right to life. An affirmative answer would result in constitutional recognition of this fundamental human right, consistent with the stated values of the people of Canada.

In light of the remarkable international developments, widespread public support, and compelling reasons for Canada to move in this direction, now is the time to lay the groundwork for constitutional recognition of environmental rights and responsibilities. This may include enacting environmental bills of rights at the federal, provincial, territorial, and municipal levels as stepping-stones towards the ultimate goal of constitutional reform.

Enshrining environmental rights and responsibilities in the Constitution is not a magic wand that would instantly solve Canada’s complex ecological challenges. However, doing so would force Canadians to make sustainability a genuine priority, resulting in changes that would make Canada a greener, cleaner, wealthier, healthier, happier nation in the long run.

For additional information, please see

David R. Boyd, The Right to a Healthy Environment: Revitalizing Canada’s Constitution (UBC Press, 2012)

David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (UBC Press, 2012)

The land gives us more than food, but can the law give back?

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Conservation

The supervision, management, and maintenance of natural resources. – (Black’s Law Dictionary)

The responsible preservation, management and care of our land and of our natural and cultural resources. – (Alberta Land Use Framework)

A state of harmony between men and land. – (Aldo Leopold)

Set foot on Ruzicka Sunrise Farm and something feels different. Whether it is the diversity of birds, the native prairie, or dugouts that test cleaner than some municipal water sources, Don and Marie Ruzicka are clearly deserving of the recognition they have received for environmental conservation. The Ruzickas raise poultry, hogs and beef using a pasture-based model. In contrast to industrial norms, their management practices pursue environmental and economic sustainability together.

I originally went to Sunrise Farm seeking a farmer’s opinion on government policies, but within minutes Don and I were talking human values. We are both followers of Aldo Leopold, the pioneering conservationist whose 125th birthday would have been this year. As a young government officer, Leopold’s job was to kill wild animals that killed livestock and game species. As he came to respect his prey, he theorized that humans would benefit by protecting natural diversity rather than dominating the living world. He urged public policy-makers and private landowners to promote wildlife habitat, not just produce species for human consumption. In his later years, he took to restoring degraded farmland as a form of recreation that could help the environment. Published posthumously in A Sand County Almanac (1949), Leopold’s “land ethic” offered ranchers and farmers a more relevant philosophy than wilderness ethics derived from distant peaks. In doing so, he empowered those who work the land to care for the environment, not just care about it.

How important are today’s Leopolds to a sustainable future? Crucial, if one considers the historic settlement of western North America. Despite its vastness, the West is a land of limited livable space. The original homesteads were established on farmable land near water sources, in warm valleys, or on snow-free prairies. Governments kept ownership of the less hospitable, but geopolitically important mountains and forests. Consequently, not much of the West is in private hands, but much of the ecologically important land is. Public parks and wilderness areas simply cannot provide for our full ecological needs. Food is one. Others include clean air, clean water, healthy wildlife, and healthy landscapes. Maintaining a viable habitat for humans and the species on which we depend will require private conservation. Fortunately, despite any ideological differences, environmentalists and agriculturalists often share a belief that they are serving the public good. The big challenges are more practical.

Why is it that conservation is so rarely practiced by those who must extract a living from the land? It is said to boil down, in the last analysis, to economic obstacles. – (Aldo Leopold)

Making laws that promote the agriculture-environment connection is challenging. We need to keep land in agricultural production but we need agricultural practices to be environmentally friendly. New regulations could scare the agricultural sector as it is already struggling financially. Add new costs and farmland becomes more economically valuable for other uses. Flat fields and open ranges get eyed for suburban sprawl or for extracting natural resources from underground. Furthermore, land use regulations are often perceived to be at odds with private property rights. This standoff is especially tense in the West, where owning a piece of the frontier once promised freedom to do as one pleases. The solution will need to be viable for farmers and respect the place of land ownership in western culture.

One attempt to address this challenge is Alberta’s Land Use Framework. This provincial government policy intends to rely on public and private lands in pursuit of ecological sustainability. The Land Use Framework will create regional plans to provide a vision for land use, development, and conservation for defined geographic areas. Once made, regional plans could have legal weight over official decisions like subdivision development or natural resource permitting. To assist in pursuing these visions, several conservation tools are provided by the Alberta Land Stewardship Act. These options range from ‘soft’ to ‘hard’. The softest option is to rely on voluntary management practices. Simply hope that more landowners do what the Ruzickas do. Further hope that they make enough of a living to keep on farming. At the hard end of the spectrum is command and control regulation. Government could protect the agricultural or environmental value of land through “conservation directives” that prohibit certain uses. This is the option most likely to trigger property rights claims. ALSA allows landowners to challenge regional plans and claim financial compensation if conservation directives cause lost property value.

The middle ground is a series of ‘market based’ conservation tools: financial incentives to develop land, or disincentives to develop it. ALSA could allow landowners to:

  • receive public funding for research and development of conservation projects;
  • sell offsets to counterbalance the impact that other land users have on the ecosystem; or,
  • sell their development opportunities to developers in less ecologically important areas.

Market-based regulation has its critics. As discovered with greenhouse gas offsets, there needs to be assurance of results. Financial deals to conserve private land will likely need to be sealed by conservation easements.

Conservation easements are legal agreements to restrict development while allowing traditional land uses to continue. Landowners give up their rights to develop their land to a legislatively qualified organization, usually a ‘land trust’. Conservation easements are governed by legislation. Under ALSA, conservation easements can be used for environmental or agricultural protection purposes. Creating a conservation easement is voluntary, but once in place it is legally enforceable. Conservation easements run with the land, not the landowner, so the land will stay protected even if it is sold.

Conservation easements can protect farmland from real estate development but they do not prohibit the extraction of oil, gas, or mineable minerals. This is because in Alberta, like many other places, legal ownership of underground minerals is separate from ownership of the surface. Hold that thought as we explore whether reliance on the market is enough to promote the public good.

The week I returned from Sunrise Farm, the Government of Alberta launched the Land Trust Grant Program, allocating 5 million dollars to conservation easements. The first ALSA tool to be attempted is a straight financial incentive. To qualify for funding, private projects must align with public policy objectives to conserve ecologically important lands. The screening process will consider whether the lands in question are vulnerable to competing land uses. This program is a good start for a new public policy initiative, but the real test will come when there are competing public goods. Alberta legislation requires that natural resource projects be in the “public interest” before they can be permitted (Energy Resources Conservation Act; Natural Resources Conservation Act). The public interest test requires that permitting agencies consider the social, economic, and environmental impacts of the project. When a project is proposed, landowners and easement holders have a right to a hearing because their own legal interests may be directly and adversely affected. This provides an opportunity to raise public concerns; for example, the fact that their area is ecologically significant or that they received public funding for a conservation easement. They can use the hearings to generate political attention, pressure the resource company to negotiate, leverage commitments to limit surface disturbance, or ask the permitting agency to deny the project. Someday, private conservationists might be able to argue that a regional plan prevails over the permitting process. Until that day, the permitting agency has no obligation to conclude that the landowner’s personal preference or conservation efforts represent the “public interest”. The project can be approved, after which the resource company can force entry onto the land. The landowner will receive, you guessed it: financial compensation.

It is hard to make a man, by pressure of law or money, do a thing which does not spring naturally from his own personal sense of right and wrong.

– Aldo Leopold

If one theme emerges from the above examples, it is that current law and policy are reducing private conservation to property rights, and property rights to money. This is a very narrow interpretation of the interests associated with living on and caring for the land. Unfortunately, this narrow interpretation could undermine the entire spectrum of regulatory tools. Command and control regulation might not occur if governments fear paying compensation. If governments must pay to infringe on property rights, they will do so to extract natural resources before they do so to pursue ecological goals. Perhaps of greater concern, voluntary measures will be hard to encourage if what one cares most about could be lost anyway. Conservation may involve a utilitarian balancing in some definitions, but by other definitions it is a moral act. If so, the best reward may be for government policies, plans, and regulations to uphold human efforts and human values. Where private land has public importance, the question becomes not what rights you have, but what you do with them. Until that question is raised, the “public interest” will remain a long way from the ‘public good’, and the Land Use Framework a long way from Aldo Leopold’s land ethic

As I sat down to my Thanksgiving dinner, delivered by Sunrise Farm, the last thing on my mind was government policy. I was making the agriculture-environment connection by supporting farmers who support the environment.

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