The Ministry of Environment and Climate Change has passed the halfway mark of its review of Canada’s environmental assessment laws and procedures.
The current framework originated with the passage of the Canadian Environmental Assessment Act in 1992. In 2012, the Harper government tried to limit the scope of the Act, by repealing and replacing it with a new version intending to reduce the number of projects that fell under its purview. However, the 2012 version of the CEAA 2012 has come under criticism for being unable to adequately address the magnitude of modern environmental problems. Most experts agree that in order to modernize the environmental assessment process, we cannot just tinker with the existing legislation but need to completely repeal and replace it. What is needed, they argue, is a brand new legislation with an evaluation infrastructure capable of grappling with the diffuse, inter-related and complex nature of environmental problems.
Though the Supreme Court of Canada recently denied an Alberta woman’s claim for damages against the province’s energy board, it remains unresolved whether its members could be sued for infringing a Canadian’s Charter rights and seek a remedy under Section 24 (1) of the Charter. The Court’s majority found it to “be plain and obvious that s. 43 of the Energy Resources Conservation Act” – granting immunity to the regulator – “on its face bars [Ernst’s] claim for Charter damages.”
It’s a decision that has raised a lot of eyebrows.
A recent decision by the Federal Court of Appeal confirms that governments enjoy relative freedom when developing legislation, even when laws may impact traditional aboriginal rights. The decision at issue stems from legislative activity taken by the previous Harper government when it introduced bills C-38 and C-45 — both controversial on account of its reliance on omnibus budget bills to make major statutory reform, which critics charged were not subject to adequate parliamentary scrutiny.
Though the bills courted public discontent, protests and eventually spurred the Idle No More movement, there has been relatively little court action on these “behemoth” budget bills. That changed in Courtoreille v. Canada, an application for judicial review of C-38 and C-45 filed by Chief Steve Courtoreille and members of the Mikisew Cree First Nation.
In their application, Chief Courtoreille and the Mikisew Cree state that the purpose of the billsare to reduce federal oversight in environmental matters.
Environmental litigation promises to make headlines in 2017, as some major cases are likely to be heard or decided in different courts around the globe. Here’s an overview of five trends to keep an eye out for.
1. As Earth’s warming trend continues, citizens sue for action
Climate change litigation gained momentum in 2016 with lawsuits launched against several governments and multinationals.
The right to a livable climate and environment, as articulated in Article 112 of Norway’s constitution, is the basis for legal action by environmental groups suing the country’s national government.
At issue is whether Norway’s decision to award new exploration licences in the Barents Sea violates the right of citizens to a healthy environment. Coming off the heels of a Dutch court decision in 2015 (still under appeal), which ordered its government to cut emissions by 25 per cent by 2020, a Norwegian re-think of offshore oil and gas development would go a long way in forcing governments to take action on climate change.
Last week, eight provinces and all three territories signed the Pan-Canadian Framework on Clean Growth and Climate Change, with a view to meet the country's target to reduce emissions by 30 per cent, relative to 2005, by 2030. Provinces who are already well on their way to meeting the framework include Ontario, Québec and Alberta. Opposing the framework are Saskatchewan and Manitoba, each for their own reasons. Those who have signed on have yet to announce the exact measures they will take to match the federal timetable.