New Developments in Environmental Law
ECELAW will be bringing you monthly updates on developments in environmental law. Further detail on any new cases or legislation can be found in our information library.
APRIL 2011
Case Law: Federal
David Suzuki Foundation v. Canada (Minister of Fisheries & Oceans)
Federal Court rebukes DFO for “reprehensible, scandalous or improper conduct”
In December 2010, Ecojustice won a precedent setting case that confirmed the federal government’s responsibility to protect everything that makes habitat healthy for whales, from pollution-free water to plentiful amounts of the salmon they need for food.
Ecojustice represented a consortium of environmental groups that brought two judicial review applications seeking to overturn DFO’s protection statement and protection orders for the Northern and Southern Resident Killer Whales. Ecojustice argued that the intention of the Species At Risk Act (“SARA”) was that once a species was designated as “endangered species” or a “threatened species”, DFO was required to protect the species’ critical habitat of species by law — not by government discretion. DFO argued that it should be allowed to rely on discretionary provisions. The Federal Court Judge found that DFO had acted unlawfully in limiting the application and scope of the protection orders made pursuant to s. 58(4) of SARA as DFO was required to protect the orcas’ critical habitat.
DFO has appealed one aspect of the ruling – which has not yet been decided. However, the Federal Court recently issued its judgment with respect to costs for the judicial review hearing and awarded the environmental groups represented by Ecojustice $80,000 in costs on a solicitor-client basis. Russell, J. found that the government “displayed reprehensible, scandalous or improper conduct that is deserving of reproof or rebuke” in the manner it conducted itself throughout the process of the judicial review applications.
Case Law: Nova Scotia
Parker Mountain Aggregates Limited v. Nova Scotia (Minister of Environment) et al., 2011 NSSC 134
Judicial Review under s. 138 Environment Act – Minister’s decision to suspend quarry approval upheld
Parker Mountail Aggregates Limited (“PMAL”) appealed the Minister of Environment’s decision to issue temporary approvals for the quarry and to then suspend the approval by stop-work order on October 30, 2009. Robertson, J. upheld the Minister’s decision finding that there was no breach of procedural fairness and the Minister had the discretion to issue temporary permits and stop-work orders given the duty to take action to manage and protect the environment.
PMAL received approval for the quarry in 1999 for 10 years but it was conditional on PMAL submitting a “legal property boundary survey outlining the area of the site… within two calendar months from the date of the issuance of the approval”. PMAL never submitted the survey and when they started preparing for blasting in 2009 neighbours complained that the site for the quarry had changed since the 1999 approval – which required the consent of adjacent neighbours. PMAL argued that its 1999 approval did not specify a particular active area for the quarry but NSE argued that it did because the consent of landowners within 800m was required and obtained. Since the survey was never submitted and PMAL was now changing its active site to a location nearer to the public road and neighbours, the NSE suspended its approval and required an amended application rather than a renewal. The Supreme Court of Nova Scotia upheld the Minister’s decision.
Legislation: Nova Scotia
The Nova Scotia Legislature is sitting this month and considering the following Bills of interest:
- Wilderness Areas Protection Act
- Electricity Act
- Energy Saving Roadway Lighting (2011) Act