OLDMAN DAM: ENVIRONMENTAL ASSESSMENT AND THE CONSTITUTION SEPTEMBER 17, 2012

OLDMAN DAM: ENVIRONMENTAL

ASSESSMENT AND THE CONSTITUTION

SEPTEMBER 17, 2012

Overview

• Federal and Provincial Legislative Powers relating to the Environment

• Oldman Dam Project

• Are Federal EA Laws constitutional? – Environmental Assessment and Review Process

Guidelines Order – Canadian Environmental Assessment Act 2012

Federal and Provincial Legislative Powers (Environment)

• “Federal patchwork superimposed on provincial carpet”

• Provincial Powers (s.92, 92A)– Property and civil rights– Matters of a merely local or private nature– Lands, mines, minerals; non-renewable

natural resources; forestry; electrical energy

– Local works and undertakings

Federal and Provincial Legislative Powers (Environment)

• Federal Legislative Powers (s.91)– Sea coast and inland fisheries – Navigation and Shipping– Federal works and undertakings– Criminal law– Spending – Indians and lands reserved for Indians– Peace order and good government – Trade and Commerce – Taxation

Delimiting Federal and Provincial Powers

• Interpretative Tools and Legal Principles– Exclusive vs. Concurrent Jurisdiction– Administrative vs. Legislative

Interdelegation – Interjurisdictional Immunity– Role of Territory and Ownership– Treaty Implementation

Fisheries Powers

• R. v. Fowler – Wood debris deposited into a stream contrary to

Fisheries Act – No evidence actual harm to fish, habitat– Not within federal legislative authority

• R. v. Northwest Falling Contractors– Diesel oil - deleterious substance deposited

into waters frequented by fish– Evidence of harm to fish– Within federal authority

Criminal Law Power

• R. v. Hydro-Quebec • PCBs released into Quebec stream by

Hydro-Quebec facility contrary to Canadian Environmental Protection Act

• Tests for valid exercise of criminal law power (RJR MacDonald):– Legitimate public purpose– Prohibition of an activity– Penalty

Criminal Law Power

• R. v. Hydro-Quebec • Issue: does CEPA use appropriate tools to

pursue the legitimate public purpose?• Is CEPA about environmental protection or

control of toxic substances?• Laforest (majority)

– lengthy process identify toxic substances– regulatory measures to reduce, control justifiable

so long as combined with prohibitions

Peace Order and Good Government Powers

• Anti-Inflation Reference, Crown Zellerbach, R. v. Hydro-Quebec

• Emergency Branch of POGG

• National Concern Branch of POGG– Singleness, Distinctiveness, Indivisibility

• Atomic Energy, Marine Pollution justified under POGG

• Toxic Substances probably not justified

Oldman Dam Project

Oldman Dam Project

Oldman Dam Project

• Alberta government initiated in 1980s• Irrigation benefits to 200 farmers plus up

to 25 MW electricity • Peigan First Nations (Milton Born with a

Tooth) and Friends of the Oldman River (FORS, Martha Kostuch) opposed project

• Peigan Reserve 12 km downstream from Oldman Dam site

Oldman Dam Environmental Effects

• Loss of riparian habitat (cottonwood forests

• Loss of cold-water trout habitat

• Mercury contamination

• Increased dust and related air pollution

Oldman Dam Project

• Alberta prepared environmental assessment, found no significant effects

• Federal Environment Minister refused to conduct EA under EARGO although Navigable Waters Protection Act permit and Fisheries Act authorization required

• FORS launches Rafferty-style application for judicial review

• Application denied at trial, appealed successfully

Oldman Dam Legal Issues

• Is the Guidelines Order authorized by s. 6 of the Department of the Environment Act? (Guidelines can be mandatory).

• Is the Guidelines Order inconsistent with the Navigable Waters Protection Act and the Fisheries Act? (No, just provides for additional requirements)

• Is the Guidelines Order applicable to the Oldman Dam Project?

Applicability to Oldman Dam

• Transport Canada decision-making authority for NWPA; DFO not decision-making authority for Fisheries Act

• No affirmative regulatory duty on DFO

• Proponents can construct dam without DFO authorization (not unlawful to build dam without authorization but if you do you may be in legal jeopardy if fish habitat is harmed)

Oldman DamConstitutional Validity

• Is the Guidelines Order so broad as to offend ss. 92 and 92A of the Constitution Act, 1867 and therefore constitutionally inapplicable to the Oldman River Dam owned by Alberta?

Oldman Dam Analysis of Constitutional Issues

• Authority to conduct a federal assessment of a proposal?

• EA is merely a component of federal decision-making; constitutional authority to carry out EA derives from federal authority over subject matter

• Distinguish subject matter that brings feds in as decision-maker from scope of project, scope of issues to be considered

Constitutional Limits on Scope of Issues to be Considered

• No for projects (e.g., rail lines) where feds have “comprehensive jurisdiction”

• If comprehensive federal jurisdiction, integrated decision can be made that takes into account how project affects “provincial” as well as federal environmental issues

Constitutional Limits on Issues to be Considered in Decision?

• What about projects (e.g.,Oldman) where federal jurisdiction is not central to project (“restricted jurisdiction”), but results from impact (e.g., navigation)

• Supreme Court - Feds can conduct an integrated assessment (federal, provincial issues) if affirmative regulatory duty and legitimate concern about “federal” impacts (e.g., fish)

Unresolved Constitutional Issues

• Threshold for federal jurisdiction to require EA for a project where federal jurisdiction is not central?

• Scope of project subject to federal EA? (scope of project in Oldman is clear; what about bridge and road (having fisheries effects) leading to mill (with no federal effects)

• Scope of assessment where regulatory trigger tangential?

CEAA 2012: Constitutional Issues

• CEAA 2012 takes narrow approach with respect to range of issues to be considered constitutionally valid

• Requires assessment only of “federal effects” of projects having “restricted jurisdiction” federally (s.5.(1))

• Requires assessment of provincial and federal effects where federal authority has duty or function to perform under other federal law

CEAA 2012: Constitutional Issues

• CEAA 2012 requires assessment process for projects listed in Designated Projects Regulations (s. 8, 10). Is it constitutionally valid to require a federal EA for a project with no other federal decision required?

• CEAA 2012 includes prohibitions and penalties (unlike CEAA). Does criminal law power support CEAA 2012 following Hydro-Quebec case?

Take Home • Federal authority to assess projects linked to

substantive federal powers• Courts have sanctioned federal government

to assess environmental issues broadly in support of decisions

• Criminal law power increasing in importance, POGG and trade and commerce decreasing

• CEAA 2012 has other constitutional issues (designated project)