Ontario has adopted the latest update of its Greater Golden Horseshoe Growth Plan, from now until 2041. The Greater Golden Horseshoe is one of the fastest growing regions in North America. By 2031, the population of this area is forecast to grow by an additional 3.7 million (from 2001) to 11.5 million people, accounting for over 80 per cent of Ontario’s population growth. By 2041, the Plan predicts 13.48 million people, 10.13 million of them in the Greater Toronto Area. Most of the growth is predicted to occur outside the current City of Toronto. Where will we put them all? And will the environmental impact be positive or dreadful?

“Over the next quarter century, communities within the GGH will continue to experience the benefits that come with growth, including: vibrant, diversified communities and economies; new and expanded community services; and arts, culture and recreation facilities. However, without properly managing growth, communities will continue to experience the negative aspects associated with rapid growth, such as increased traffic congestion, deteriorating air and water quality, and the disappearance of agricultural lands and natural resources….

This Plan will guide decisions on a wide range of issues – transportation, infrastructure planning, land-use planning, urban form, housing, natural heritage and resource protection – in the interest of promoting economic prosperity. It will create a clearer environment for investment decisions and will help secure the future prosperity of the GGH.

…

In preparing for the future, it is essential that planning for the GGH take into account the importance, and the unique characteristics and strengths of its economy. These include:

• A diverse economy supported by a wide array of manufacturing industries of which the largest is the automotive sector, and other key industry clusters such as financial and business services, hospitality and tourism, education and research, life sciences, information services, and agriculture;
• An economy in transition, with economic activity and wealth increasingly generated by service and knowledge industries;
• Trade that accounts for over half of Ontario’s GDP, over 90 per cent of which is with the United States;1
• A highly educated workforce, whose social and economic diversity are critical factors for success in the growing knowledge economy;
• Abundant natural heritage features and areas, and prime agricultural areas, and the government’s commitment to protecting them, as demonstrated through initiatives such as the Greenbelt Plan, which make our communities more attractive and healthier places to live and work;
• Cultural amenities that offer the kinds of creative and recreational activities that attract knowledge workers.

The GGH must remain competitive with other city-regions. However, urban sprawl can affect its competitiveness. Despite its many assets, Ontario and the GGH face a number of challenges in sustaining and growing its economy:

• Increasing numbers of automobiles are travelling over longer distances resulting in clogged transportation corridors, including those that provide access to our critical border crossings. Traffic congestion and the delay in movement of goods costs Ontario upwards of $5 billion in lost GDP each year;2
• Attractive and efficient public transit is difficult to introduce into sprawling communities, and this limits our ability to respond effectively to growing traffic congestion issues;
• Employment lands are being converted from their intended uses, thereby limiting future economic opportunities;
• New infrastructure is being built to service lower-density areas, while existing infrastructure in the older parts of our communities remains underutilized;
• Urban sprawl contributes to the degradation of our natural environment, air quality and water resources, as well as the consumption of agricultural lands and other natural resources so critical to the future economy.

Decades of neglect and lack of sufficient investment have resulted in the current infrastructure deficit. Tens of billions of dollars beyond current levels of investment will be required before the situation is back in balance. All levels of government are under pressure to meet public infrastructure needs. Additional support from federal partners; innovative, alternative partnership arrangements that protect the public interest; and the strategic staging of infrastructure investments are all required to respond to these challenges. Ultimately, better investment in our cities will help to mitigate sprawl. Enhancing infrastructure, integrating and improving transit systems, protecting valuable natural resources and strengthening local government will all go far towards the implementation of this Plan.

This Plan addresses these challenges through policy directions that –

• direct growth to built-up areas where the capacity exists to best accommodate the expected population and employment growth, while providing strict criteria for settlement area boundary expansions
• promote transit-supportive densities and a healthy mix of residential and employment land uses
• preserve employment areas for future economic opportunities
• identify and support a transportation network that links urban growth centres through an extensive multi-modal system anchored by efficient public transit, together with highway systems for moving people and goods
• plan for community infrastructure to support growth
• ensure sustainable water and wastewater services are available to support future growth
• identify natural systems and prime agricultural areas, and enhance the conservation of these valuable resources
• support the protection and conservation of water, energy, air and cultural heritage, as well as integrated approaches to waste management.”

How many more people will pack into the Golden Horseshoe? is a post from: Environmental Law and Litigation

Mature trees add beauty and character to any neighbourhood, while providing shade in the summer, wildlife habitat and cleaner air. As climate change makes our summers more sweltering, trees are becoming more important than ever. Considering how important trees are to our physical and mental health, it’s a scandal and a shame that the law and our governments do so little to protect them. All the more reason to celebrate a rare victory this spring, and to congratulate Clay Ruby for yet another win in the public interest.

On  May  17,  2013, Justice  Moore of  the  Ontario  Superior  Court  of  Justice   ruled  that  trees  whose  trunks  grow  across  private  property  lines  are  the  common  property  of  both  owners.   Neither  owner  can  injure  or  destroy  a  shared  tree  in Ontario without  the  consent  of  the  other.

In Hartley  vs.  Cunningham  et  al.,  2013  ONSC  2929,  Katherine  Hartley  wanted to cut down a  mature  Norway maple   whose  trunk   grew  at the boundary with her  neighbours, the Scharpers. The Scharpers were absolutely opposed to the destruction of the tree. Without  notice  to  them,  Hartley  obtained  a  permit  to  destroy  the  tree  from  the  Toronto  Urban  Forestry  department, arguing that the tree was dangerous.

Hartley must be a law abiding person. Unlike many others in her position, she didn’t just take a chainsaw to the tree; as mentioned in Anderson v. Skender,  [1994] 1 W.W.R. 186 (BCCA),  Leave to appeal refused [1994] 1 S.C.R. XI:  “’tree trespass’ [is] a familiar cause of suburban friction … as residential development presses relentlessly on the surviving descendants of a forested past.”

Instead, Ms. Hartley sued for a declaration that she owned the tree, and was entitled to cut it down. Surprisingly, she lost.

Her loss was surprising because few attempts to protect boundary trees have been successful. While the City of Toronto brags about its Tree Bylaw, it does little to enforce it. Theoretically, the by-law prohibits injury to any tree 30 centimetres in diameter or more, without a permit. In practice, the City issues vaguely worded permits to damage even huge, rare and valuable trees, and issues building permits for buildings that will damage trees. And it rarely prosecutes anyone who breaches the bylaw. Ontario is just as bad, rarely enforcing its  Forestry  Act.

The courts, too, usually allow neighbours to cut branches or roots (though perhaps not stems) that extend across a property line, no matter how much damage that does to a beloved tree. For example, in Gosselin v Blanchard, 2007 BCPC 218, neighbours fought for years over a cedar hedge close to  the property line.  Gosselin asserted that Blanchard had poisoned and cut the trees; Blanchard claimed damages from tree roots and branches encroaching on his property. Blanchard’s claims were dismissed, precisely because he could have cut the offending branches and roots back to his property line, if he was sure what that line lay:

“If that cutting causes harm or damage to the trees, it is basically “so be it.” If people spike a tree or pour something onto a tree to cause it to die and the tree is on someone else’s property, that would be actionable. Defending your property by cutting off the branches of the tree or the roots that encroach onto their property, so long as it is done in a non-malicious manner, they are within their rights.”

Trees are living beings, and may not survive if one neighbour whacks branches and roots of the tree, from his/her side of the property boundary. Some courts suggest that this right is not absolute, and does not permit injury imposed “needlessly” to a boundary tree. But when trees are illegally damaged or destroyed, the compensation awarded is pitifully inadequate.

What was different in Hartley was that the trunk of the tree straddled the property boundary, not just the roots or branches. In Koenig v Goebel, [1998] 6 W.W.R. 56 (Sask QB ), the court grouped straddle trees into three  categories, only one of which was protected:

1. Straddle tree – trunks straddle common boundary between properties at ground level – 3 subcategories:
   1. Consensual trees – Those trees planted along common boundary with consent of adjoining owners, which are owned in common.
   2. Straying Trees – Trees planted on one property whose trunks have expanded over a common boundary onto adjoining property
   3. Voluntary trees – origins unknown

In Hartley, Justice Moore took a more robust approach to protecting straddle trees. First, he ruled that the Scharper tree was a straddle tree because part of the trunk rose over the property boundary, whether or not the trunk was on both properties at ground level. Second, he ruled that the mere presence of the straddle tree gave both neighbours part-ownership, regardless of who originally planted the tree. Third, he rejected Hartley’s claim that the tree was dangerous; any danger could be adequately managed by professional cabling, which the Scharpers had offered to pay for. Thus, both neighbours owned the tree, and Ms. Hartley could not cut it down.

Toronto’s  tree  canopy  is  a  precious  common  resource  that  helps  make  Toronto   beautiful and livable  place .    Hilary  and  Stephen  Scharper, thank you for helping to protect it!

Dianne Saxe

This article was first published in the June 14 Lawyer’s Weekly.

More on that rare tree victory is a post from: Environmental Law and Litigation

Ontario’s Ministry of Natural Resources is moving ahead to shift some Endangered Species Act permits to a “permit by rule”/ registration system, through  Ontario Regulation 176/13. This “Modernization of Approvals” initiative is modelled on the successful one already well underway in the Ministry of the Environment. It was supported by the report of the Endangered Species Act Panel, as one of its six themes.
I’m a strong supporter of the “Modernization of Approvals”/permit by rule concept: the idea that common, low risk, frequently permitted activities can be governed by a standard set of rules, instead of a bespoke permit. If the activities are well chosen and the rules are well designed, a registration/permit by rule system makes routine permits faster, more predictable and more uniform, without reducing species protection. Enforcement is essential, of course, but it should be easier to enforce standard rules than it is to enforce one-off permits bedevilled by  little variations. And reducing the number of routine permits should free up regulatory staff to focus on the more challenging applications, as has been happening at the Ministry of the Environment.

Please note that MNR is calling its approach “Rules in regulation”, instead of the more common “permit by rule”. The Ministry of Environment calls the same approach its “registry” or “EASR” system.

In a telling sign of the importance of Endangered Species Act protection, the Ministry received 10034 comments on its proposal: 9469 comments writing and 565 online. 90% were form letters, both for and against the proposal. As a result, a number of useful amendments were made to the proposal, now Ontario Regulation 176/13 (which amends O. Reg. 242/08)

Expert Panel Recommendations

Here is what the expert panel recommended:

The Ministry of Natural Resources should implement an approval continuum where a  “permit by rule” (PBR) approach is implemented for certain projects/activities, which must meet a prescribed standard set of implementation conditions instead of proceeding through the regular negotiated approvals process (Permit by Review). Projects/activities that would suit this approach are those which are common and repeated, where there is confidence in the mitigation and therefore a lower risk to the species / habitat and where acceptable implementation best management practices are followed / repeated, such as conservation projects where the purpose is habitat creation. Risk assessment criteria could be developed by MNR to determine what other types of projects/activities would be subject to this PBR standard condition approach. It is recommended that PRB will only be implemented in exceptional circumstances for a relatively small proportion of approval applications in cases where the risk to ESA species is demonstrably low.

Compliance would be enforced by focusing on self-regulation with random audits of activities, and charges being laid for non-compliance, as appropriate.

Public Comments and MNR response

Here is a summary of the public comments that were received on the concept, along with MNR’s responses:

“1. The ESA should be strengthened, but the proposal weakens the Act and would lead to a degradation of habitat; the proposal does not meet MNR’s mandate or the intent of the ESA

The regulatory amendments continue to maintain a high level of protection of species at risk and their habitat. MNR is changing the way its work is carried out to better serve those who rely on the ministry for programs and services in a way that is consistent with MNR’s mandate. There are no changes to the Act, but rather to O. Reg. 242/08, which is a regulation enabled by the current legislation. The changes are consistent with the purposes of the ESA.

Some of the changes after consultation and engagement that strengthen the protection of species at risk required by the proposal are:

• The regulation requires proponents to consider Aboriginal Traditional Knowledge (ATK) when preparing a mitigation plan, which will facilitate engagement at the community level.
• Aquatic Species (s. 23.4) Conditions in the standardized approach were expanded to provide more options for taking actions to benefit affected species.
• Ecosystem protection (s. 23.11)

Eligible proponents were restricted to legal entities such as municipalities, universities and not-for-profit groups that have among their primary objectives natural heritage conservation, ecological conservation or similar objectives. (See s. 23.11 for a full list.)
This section does not apply to activities in the following sensitive ecological community types: fen, bog, sand barren or dune, beach bar, alvar, cliff or talus.
• Newly-listed and transition species – development (s. 23.13)

species that are found on-site late in the activity process are not eligible for this provision and a permit would be required for this circumstance.

“newly-listed species” is restricted to species listed on the Species at Risk in Ontario List as an endangered or threatened species for the first time on January 24, 2013.
• Newly-listed and transition species – development (s. 23.13) and Early exploration mining (s. 23.10) Proponents are prohibited from carrying out any part of the activity in an area that is being used, or has been used at any time in the previous three years, by woodland caribou (forest-dwelling boreal population) to carry out a life process related to reproduction, including rearing.
• Pits and quarries (s. 23.14) The time period in which to complete a mitigation plan when a species first appears on a site was reduced from three to two years.
• Safe harbour habitat (s. 23.16) The “safe harbour plan” concept was removed. The regulation now only allows eligible safe harbour habitat (i.e. temporary habitat for species at risk, that will be removed at a later date) to be created or enhanced in accordance with a permit or agreement issued by or entered into with the Minister. .
• Species protection, recovery activities (s. 23.17) An animal care protocol is required for activities involving handling of certain types of species at risk, in order to minimize potential adverse effects on the species.
• Threats to health and safety, not imminent (s. 23.18)

While comments received, including the ESA Panel recommendations, supported the concept of streamlining approvals for health and safety activities, some concern was expressed that the language in the proposal was too broad, allowing too many activities to be eligible for the amendment. The ministry changed the wording from “is unacceptable under the circumstance” to “is likely to have serious consequences in the short or long term if the activity is not carried out.” in order to scope the activities and added sub categories of activities to further scope what activities would be eligible.
Eligibility for activities related to the maintenance, repair, removal, replacement, decommissioning or upgrade of an existing structure or infrastructure was restricted such that there can be no: increase in the area occupied by the structure or infrastructure (except in relation to culverts), change in its location or use/function of the infrastructure.
The removal and decommissioning of structures was added to the list of eligible activity types to reflect that in some cases repair may not be possible or that a safer course of action may be to remove or decommission an unsound structure or infrastructure.
Many large or complex projects now require a mitigation plan (e.g., removal or replacement of an entire structure or infrastructure, or decommissioning of a dam).
Activities related to a drainage work to which s. 23.9 (Drainage works) of the regulation applies are not eligible for s. 23.18
• A number of species are excluded from specific sections of the regulation due to the potential risk the activities present to these particular species.

2. Administrative efficiencies are not addressing the needs of species at risk (SAR) but reflect economic needs of industry, and MNR budget cuts; it is not realistic to expect industry to follow rules in regulation without MNR oversight.

The administrative changes to the regulation (Trapping – incidental catch s. 23.19, Possession for educational purposes, etc. s. 23.15, and Commercial cultivation of vascular plants, etc. s. 12) do not alter species protections but rather help avoid duplication and integrate a number of approvals with other planning processes in place within MNR.

Under the “rules-in-regulation” model put in place by these regulatory amendments, proponents of activities that would otherwise have prohibited impacts on species at risk or their habitats must satisfy requirements set out in the regulation. In most case proponents are required to register their activities with the Ministry and take a number of steps to minimize adverse effects on protected species or habitat. MNR will continue to conduct education and outreach activities, monitoring, auditing, and where necessary enforcement actions for the purpose of protecting and recovering species in Ontario.

3. Need increased efficiencies and flexibility for industry (e.g., there should be a window of two years before mitigation of adverse effects is required, health and safety proposal should not have any excluded species)

The Ministry is providing greater flexibility to industry by proceeding with a “rules-in–regulation” regulatory model for eligible activities in a way that continues to protect species at risk. The Ministry is focusing its efforts and resources on responding to requests for ESA permits for activities not covered in this regulation that are likely to have greater potential to impact species at risk.

4. The Crown Forest Sustainability Act (CFSA) already provides for needs of SAR; the forest sector is required to continuously update their management practices to be consistent with provincial recovery strategies developed under the ESA; the forestry sector should be exempt from the ESA based on unnecessary duplication with CFSA.

The new provision dealing with forest operations sets out the conditions that persons conducting forest operations impacting species at risk or their habitats must comply with if not acting under an ESA permit. This provision will apply to forest operations conducted before July 1, 2018 (5 years), during which time the Ministry will establish a panel to review the linkages between the ESA and the CFSA. The panel will include members from Aboriginal communities, along with stakeholders from the forest industry, municipalities and environmental organizations.

5. Recommendation to charge fees for permits as a means to offset budget cuts and avoid exemptions

Implementing a full cost recovery system for permitting is under consideration, but is out of scope for the current regulatory amendments.

6. General concern that registration and “rules-in-regulation” are intended to replace permitting; new SAR on sites should be addressed through overall benefit permits.

Where appropriate, MNR is shifting from a “review and approval” model to a registration and “rules–in-regulation” model. The rules set out in the regulation are comparable to permit conditions and include requirements such as: registering with MNR; taking reasonable steps to minimize adverse effects on the species; developing mitigation plans using expert advice and the best available information; monitoring and reporting on the effectiveness of mitigation measures and beneficial actions (where applicable); and, reporting of sightings to MNR. Some activities are eligible only if linked to existing instruments or approvals. In some instances, higher risk activities, species, community types or sensitive time periods for species have been excluded from the applicability of the regulation.

Permits will continue to be required where an activity is not eligible for one of the provisions of the regulation, or the requirements of the regulation cannot be met.

In addition, overall benefit permits would still be required for the development or construction phases of many activities that impact species at risk or their habitat. For existing operations, newly found species must be protected as soon as they are found by avoiding and minimizing adverse effects, followed by the development and implementation of a longer term mitigation plan.

7. Registration must be mandatory for all proposals; registration will not provide enough information for MNR to monitor when exemptions are being used, or the cumulative effects resulting from activities occurring under the exemptions.

All of the new regulatory provisions require the proponent to comply with rules laid out in the regulation. All but two of the eighteen provisions require registration; activities, locations and species will be recorded in the registration. The Ministry will be aware of activities that are occurring under the regulation, where they are taking place on the landscape, and which species are affected; this will facilitate analysis of cumulative effects.

Two of the regulatory provisions (Commercial cultivation of vascular plants, etc. s. 12 and Forest operations in Crown forests s. 22.1) do not require the proponent to register with the Ministry before undertaking a specified type of activity. The amendments to s. 12 (Commercial cultivation of vascular plants etc.) leave that section largely unchanged, though cultivators will no longer be required to give notice to MNR.

Forest operations carried out under approved forest management plans would not require an ESA permit provided the proponent complies with the rules set out in regulation. MNR is responsible for approving forest management plans under the Crown Forest Sustainability Act. The regulatory scheme in place under that Act already includes requirements to address impacts to species at risk; it also requires reports that will assist the Ministry with assessing the cumulative disturbance of forestry operations. Additional conditions in the regulation include direction consistent with the Caribou Conservation Plan related to forest management planning.

8. Comments and questions about consultation, the amount of information in the first posting and the makeup of the ESA Panel

This proposal notice about the ESA regulatory amendments was originally posted on the Environmental Registry (ER) for a 45 day comment period on December 5, 2013. The comment period for this notice was subsequently extended, and the notice was updated with a ten page document containing additional information on January 24, 2013, for a total of 82 days. MNR continued to consult with stakeholders during the development of the regulation.

The ESA Panel was developed to deliver advice to the ministry on improving the implementation of the ESA and represented a range of interests and expertise.

9. Concerns about the scope of “transition” for activities that are already approved or planned.

• To be eligible for the “transition” provision (Newly-listed and transition species – development s. 23.13) there are a number of conditions that must be followed for activities that were approved or planned prior to dates specified in the regulation. These include conditions that require proponents to protect individual members of species at risk carrying out critical life processes such as reproduction and hibernation. Conditions also require proponents to take steps to avoid or minimize adverse effects on species or habitat; monitor and prepare a report on the effectiveness of these actions annually; develop and implement a mitigation plan for affected species at risk, carrying out habitat restoration or enhancement activities; and report observations of species identified to MNR.

• The ER notice dated December 5, 2012 included a number of potential sectors that might be included in the “transition provision”. The document that was added on January 24, 2013 providing additional detail included a list of specific activities; other sectors that felt they might be eligible for this provision were invited to provide comments to MNR. Activities that have been added to the “transition” provision as a result of comments received by the Ministry are:

Constructing drainage works under an agreement filed under s. 2 (2) of the Drainage Act, or in respect of which an engineer’s report was adopted under s. 45 (1) of the Drainage Act
Carrying out a transit project, as defined in s. 1 (1) of Ontario Regulation 231/08 (Transit Projects and Metrolinx Undertakings) made under the Environmental Assessment Act, in respect of which the Minister has given a notice to proceed with the transit project under O. Reg. 231/08
Construction of Solar Facilities less than three or four hectares in area (An activity described in s. 3 of O. Reg. 350/12 for the purposes of s. 20.21 of the Environmental Protection Act)
Advanced exploration carried out under Part VII of the Mining Act provided certain criteria are met (including written receipt of a closure plan by the Director of Mine Rehabilitation)
Mine production carried out under Part VII of the Mining Act provided certain criteria are met (including written receipt of a closure plan by the Director of Mine Rehabilitation)
Rehabilitation of a mine hazard/Voluntary rehabilitation of a mine hazard provided certain criteria are met
• Clarification was requested regarding eligibility under an existing transition regulatory provision for development and infrastructure affecting Redside Dace. Clarification regarding eligibility under s. 23.1 has been added to the regulation.

10. In response to requests by two industry sectors, the Ministry added two provisions to apply to the operation of wind facilities, and early mineral exploration. They are:

• Wind facilities (s. 23.20 ) This section applies to a person who is engaged in the operation of a wind facility within the meaning of Ontario Regulation 359/09 (Renewable Energy Approvals under Part V.0.1 of the Act) made under the Environmental Protection Act.

• Early exploration mining (s. 23.10) This section applies with respect to certain mining activities that constitute early exploration as defined in s. 1 (1) of Ontario Regulation 308/12 (Exploration Plans and Exploration Permits) made under the Mining Act.

Clarification

Butternut (s. 23.7) The ER proposal states that individuals would register their activities affecting Butternut with MNR at least 30 days prior to removal of any retainable Butternut tree. However, rather than registering ahead of time, individuals must submit a Butternut Health Assessor’s report to the appropriate MNR District Manager at least 30 days before completing the registration and the start of the proposed activity that will impact Butternut.”

Improving the speed and predictability of Endangered Species Act permits has reportedly been a major request of the business community. Now that they are getting some of that, will enforcement be beefed up to ensure that the new system works?

Endangered Species Act: permit by rule going ahead is a post from: Environmental Law and Litigation

The Alberta Energy Resources Conservation Board has released its  2012 Tailings Management Assessment Report, Oil Sands Mining Industry.

It concludes:

6 Conclusions Industry performance over the 2010/2012 reporting period has not met the original expectations of Directive 074. However, the ERCB notes that all operators have • committed significant resources towards managing their tailings in accordance with the objectives of Directive 074, • made material progress in developing and implementing fines capture technologies as part of their tailings management plans, and • integrated tailings management with mine planning and bitumen production activities. The fines capture performance indicates that the expectations of the ERCB and industry were optimistic. The commercial implementation of tailings management technologies will take longer than expected and performance will be lower than expected until operational problems are resolved.

Oil Sands tailings pond management not meeting environmental targets is a post from: Environmental Law and Litigation

The United Kingdom’s Royal College of Obstetricians and Gynecologists have released a position paper, recommending that pregnant women be advised about potential risks from daily life chemical exposures, including personal care and household chemicals. The paper, Chemical Exposures During Pregnancy: Dealing with Potential, but Unproven, Risks to Child Health, concludes that pregnant women should consider reducing their exposure to ordinary household chemicals:

“Under normal lifestyle and dietary conditions, the level of exposure of most women to individual environmental chemicals will probably pose minimal risk to the developing fetus/baby. However, women who are pregnant are exposed to hundreds of chemicals at a low level. Potentially, this exposure could operate additively or interactively and raises the possibility of ‘mixtures’ effects. On present evidence, it is impossible to assess the risk, if any, of such exposures. Obtaining more definitive guidance is likely to take many years; there is considerable uncertainty about the risks of chemical exposure.

The following steps would however reduce overall chemical exposure:

• use fresh food rather than processed foods whenever possible
•  reduce use of foods/beverages in cans/plastic containers, including their use for food storage
•  minimise the use of personal care products such as moisturisers, cosmetics, shower gels and fragrances
•  minimise the purchase of newly produced household furniture, fabrics, non–stick frying pans and cars whilst pregnant/nursing
•  avoid the use of garden/household/pet pesticides or fungicides (such as fly sprays or strips, rose sprays, flea powders)
• avoid paint fumes
•  only take over–the–counter analgesics or painkillers when necessary
•  do not assume safety of products based on the absence of ‘harmful’ chemicals in their ingredients list, or the tag ‘natural’ (herbal or otherwise).
• It is unlikely that any of these exposures are truly harmful for most babies, but in view of current
• uncertainty about risks, especially those relating to ‘mixtures’, these steps will reduce environmental
• chemical exposures.”

Household chemical exposure warning for pregnant women is a post from: Environmental Law and Litigation

For an interesting take on the Enbridge Northern Gateway pipeline, and the likely impact of the British Columbia government’s public rejection of the proposal, check out the excellent US environmental news program, Living on Earth. Like many other observers, Living on Earth concludes that the federal government might find it hard to override BC’s opposition to the oil sands pipeline, but that it’s the opposition of the native groups along the pipeline’s path that will really stop it from going ahead.

The Save The Fraser Declaration has now been signed by more than 130 bands. It is described as “a document of indigenous law, banning the Northern Gateway pipeline, and any similar projects, from crossing the signatories’ territories.” The signatories declare: “We will not allow the proposed Enbridge Northern Gateway Pipelines, or similar Tar Sands projects, to cross our lands, territories and watersheds, or the ocean migration routes of Fraser River Salmon.”^[7]

The Declaration was originally negotiated in November 2010 by the Yinka Dene Alliance and the St’át’imc Nation. It was then signed by representatives from over 60 First Nations, who call themselves the Save The Fraser Gathering of Nations^[8]  Many other bands have since joined the declaration. They argue that any federal government decision allowing the pipeline to proceed would infringe on their aboriginal title and rights and breach Canada’s obligations under international law. Here is West Coast Environmental Law’s analysis of the Declaration.

This powerful opposition may mean that the US State Department has to rethink its conclusion, on the Keystone XL pipeline, that oil sands oil will get to market, one way or another, with or without Keystone XL.

Northern Gateway pipeline doomed by BC and aboriginal opposition? is a post from: Environmental Law and Litigation

Ontario Environment Minister Jim Bradley has introduced Bill 91, a proposed Waste Reduction Act, 2013. The new Act is intended to kickstart further waste diversion, especially in the industrial, commercial and institutional sectors, where waste diversion rates remain low. It will also require waste diversion costs to be embedded in the price of products, instead of being a visible “eco-fee”. This new law is the signature achievement that Minister Bradley originally announced he wanted to get done while he is Minister of the Environment.

Key elements of proposed Waste Reduction Act

The proposed Waste Reduction Act, 2013 would replace the Waste Diversion Act, 2002, and would:

1. Establish individual producer responsibility requirements to divert end of life products which result in designated wastes, instead of putting the responsibility on entire industry sectors. The Act would enable the setting of standards related to waste diversion and services. Producers would have the flexibility to determine how best to meet the standards. It would make producers and those persons related to a producer or group of producers equally responsible for meeting the set standards.
2. Avoid consumer resistance to “eco-fees” by requiring all-in pricing (no visible fee) for products that create designated wastes. Any vendor choosing to publicly display the waste diversion costs that are embedded in the price of a product, must do so “in a transparent and accurate manner”. False or misleading representations would be an offence.
3. Require producers to reimburse a municipality for the municipality’s collection and handling costs for designated wastes.
4. Transform the unpopular, financially challenged Waste Diversion Ontario into a new Waste Reduction Authority with responsibility to oversee the compliance and enforcement of the new individual producer responsibility regime. It would operate a registry, allow for inspections and enforcement, and be able to issue monetary penalties for non-compliance with the Act and regulations. The Authority would be financed by fees and administrative penalties, determined through future regulations. Generally, one key goal of a delegated administrative authority is to make the regulated industry pay for its own regulation and enforcement.
5. Repeal the Waste Diversion Act, 2002, and transition the four currently operating waste diversion programs into the new regime.

The proposed framework legislation would continue the existing Blue Box program and would permit an increase in steward funding for the program beyond the current 50 per cent.

Explanatory Note

The Bill’s explanatory note summarizes the Bill as follows:

“Part I (General) states that the purpose of the Act is to promote the reduction, reuse and recycling of waste derived from products, and contains definitions and other provisions of general application.

Part II (Waste Reduction Authority) continues Waste Diversion Ontario, a corporation without share capital established under the old Act, under the new name of Waste Reduction Authority (“the Authority”).  The objects of the Authority include ensuring that waste reduction activities are undertaken in accordance with the Act and the regulations made under it.  The Minister of the Environment is allowed to appoint only a minority of the members of the board of directors of the Authority.  The Authority can set and collect fees, and is required to appoint a Registrar and inspectors.  The Registrar is required to establish, maintain and operate the Waste Reduction Registry (“the Registry”).  The Minister may appoint an administrator of the Authority if it is in the public interest to do so because a listed condition is satisfied.

Part III (Responsibility of Producers and Intermediaries) states that the purpose of the Part is to make producers responsible for waste derived from their products.  The Part provides that producers are responsible for compliance with waste reduction standards and service standards that relate to designated wastes that are derived from the producers’ products.  Where producers deal with producer-controlled intermediaries who broker, arrange for or facilitate the provision of waste reduction services for them, the intermediaries are also responsible for compliance.  Producers and their intermediaries are required to enter into service agreements containing mandatory provisions.

Producers and intermediaries are required to register in the Registry, and municipalities may do so.

Producers are also required to collect from registered municipalities designated wastes that are derived from the producers’ products, and to reimburse registered municipalities for services provided in relation to the designated wastes.  The amount reimbursed may be determined by agreement between the producer and the municipality, by a compensation formula established by the Authority, or (if an Act or regulation requires the municipality to collect and process the waste) by regulation made by the Lieutenant Governor in Council.

Part IV (Integrated Pricing) states that the purposes of the Part are to promote the reduction of environmental impacts by requiring the integration of the environmental protection costs of products when the products are sold, and to ensure that purchasers of products are provided with accurate information about the environmental protection costs of the products.  A seller who recovers environmental protection costs in connection with the sale of a product must include them in the price of the product and show an all-in price in any advertisement.  A seller who also shows the amount of recovered environmental costs must indicate the name and amount of each cost.  False, misleading or deceptive representations relating to the names and amounts of recovered environmental costs are prohibited.

Part V (Enforcement) deals with powers of inspection and seizure, compliance orders and orders imposing administrative penalties.  Compliance orders (after review by the Registrar in certain circumstances) and administrative penalty orders may be appealed to the Environmental Review Tribunal.  Contraventions of listed provisions of the Act or of prescribed provisions of the regulations are offences punishable, on conviction, by fines.

Part VI (Regulations) contains general regulation-making provisions as well as regulation-making provisions relating to Parts II, III and V.

Part VII (Existing Waste Diversion Programs and Existing Industry Funding Organizations) states that the purpose of the Part is to promote the reduction, reuse and recycling of Part VII designated waste, and to provide for the operation of waste diversion programs that were approved under the old Act.  The Part continues those programs as existing waste diversion programs.  The Part also contains regulation-making provisions to continue an industry funding organization under the old Act and to designate the organization as the existing industry funding organization for an existing waste diversion program.  The Authority is required to operate the existing waste diversion programs in accordance with the Part.  The board of directors of the Authority may appoint an administrator of an existing industry funding organization if it is in the public interest to do so because a listed condition is satisfied.  Those conditions include where the appointment is necessary to facilitate the wind-up of the existing industry funding organization or an existing waste diversion program.

The Part contains general regulation-making provisions relating to it.  Regulations made under the old Act remain in force and are deemed to be regulations made under the Part. Contraventions of the Part, the regulations made under it or the rules made by an existing industry funding organization are offences punishable, on conviction, by fines.”

Waste Diversion Ontario not succeeding

The Waste Reduction Strategy recognizes that current programs are unpopular and not working well:

“Challenges with the existing legislative framework are impeding progress

Sector recycling programs under the Waste Diversion Act cover just 14% of Ontario’s wastes. Under the existing Waste Diversion Act, producers of designated materials are currently required to pay fees to a collective stewardship agency known as an Industry Funding Organization (IFO).

• The mandatory requirement to pay fees to an IFO makes it difficult for individual producers to take action under the Waste Diversion Act.

• Because only a single IFO exists for each recycling program, IFOs disrupt the marketplace and stifle innovation and healthy competition.

• Uniform fee structures associated with IFOs also make it easier to pass recycling costs directly to consumers, reducing producer responsibility for waste diversion and doing little to encourage innovation in product design.

Roles and responsibilities under the present Waste Diversion Act are unclear.

• Waste Diversion Ontario (WDO) was established under the Waste Diversion Act to oversee the development, implementation and operation of recycling.

• WDO often plays a dual role as both the developer and overseer of recycling programs. This lack of clarity contributes to strained relationships among stakeholders involved in the delivery of recycling programs and hampers efforts  to adapt to changing circumstances.

There is also a lack of compliance and enforcement tools to ensure accountability for recycling results.

The government has limited powers to set and enforce recycling results, and to require a course correction when needed.

Lack of innovation and need for strengthened consumer protection

Individual producer responsibility is about more than making producers of product waste responsible for recycling costs – it is also about encouraging producers to develop products that are designed, manufactured and distributed in ways that reduce their impact on the environment. When each individual producer shoulders the full responsibility to divert their products at end-of-life, these costs are included in the price of their products, much the same way that other costs like rent and labour …

Including diversion costs in the price of a product harnesses the competitive nature that makes producers compete based on the price of their product…”

Bill 91, New Waste Reduction Act is a post from: Environmental Law and Litigation

Ontario’s Ministry of Education has a revised Statement of Environmental Values under the Environmental Bill of Rights.

Statements of Environmental Values (SEV). SEVs are a requirement for all prescribed ministries under the Environmental Bill of Rights. The Ministry of Education was prescribed through an amendment to Ontario Regulation 73/94 under the Environmental Bill of Rights, made on August 1, 2012. In theory, an SEV sets out policies and commitments to the environment that must be considered in future decisions. In practice, they tend to be vague and full of platitudes, but may still have a little bit of useful impact.

The biggest change in the new SEV is that the Ministry is asking other educational institutions, such as school boards, to consider following its lead.

The revised SEV states:

Ministry of Education

Statement of Environmental Values(SEV)

1. INTRODUCTION

The Ontario Environmental Bill of Rights(EBR) was proclaimed in February 1994. The founding principles of the

EBR are stated in its Preamble:

• The people of Ontario recognize the inherent value of the natural environment.

• The people of Ontario have a right to a healthful environment.

• The people of Ontario have as a common goal the protection, conservation and restoration of the natural environment for the benefit of present and future generations.

While the government has the primary responsibility for achieving this goal, Ontarians should have the means to ensure that it is achieved in an effective, timely, open and fair manner.

The purposes of the Act are:

• To protect, conserve and where reasonable, restore the integrity of the environment, by the means provided in the Act;

• To provide sustainability of the environment by the means provided in the Act; and

• To protect the right to a healthful environment by the means provided in the Act.

These purposes include the following:

• The prevention, reduction and elimination of the use, generation and release of pollutants that are an unreasonable threat to the integrity of the environment.

• The protection and conservation of biological, ecological and genetic diversity.

• The protection and conservation of natural resources, including plant life, animal life and ecological systems.

• The encouragement of the wise management of our natural resources, including plant life, animal life and ecological systems.

• The identification, protection and conservation of ecologically sensitive areas or processes.

To assist in fulfilling these purposes, the Act provides:

• The means by which Ontarians may participate in the making of environmentally significant decisions by the Government of Ontario;

• Increased accountability of the Government of Ontario for its environmental decision?making;

• Increased access to the courts by residents of Ontario for the protection of the environment; and

• Enhanced protection for employees who take action in respect of environmental harm.

The EBR requires a Statement of Environmental Values(SEV) from all designated ministries. The designated ministries are listed at:

http://www. ebr. gov. on. ca/ERS-WEBExternal/content/index2. jsp?f0=aboutTheRegistry. statement&f1=aboutTheRegistry. statement. value&menuIndex=0_3

SEVs are a means for designated government ministries to record their commitment to the environment and be accountable for ensuring consideration of the environment in their decisions. A SEV explains:

• how the purposes of the EBR will be applied when decisions that might significantly affect the environment are made in the ministry; and

• how consideration of the purposes of the EBR will be integrated with other considerations, including social, economic and scientific considerations, that are part of decision?making in the ministry.

It is each Minister’s responsibility to take every reasonable step to ensure that the SEV is considered whenever decisions that might significantly affect the environment are made in the ministry.

The ministry will examine the SEV on a periodic basis to ensure the Statements are current.

2. MINISTRY VISION, MANDATE AND BUSINESS

Ministry Overview

The Ministry of Education strives to promote a strong, vibrant, publicly funded education system that is focused on three goals: high levels of student achievement, reduced gaps in student achievement and high levels of public confidence.

The ministry also supports children and families in the early years, with a focus on quality early years and child care programs and services.

Mandate

Ontario students will receive the best publicly funded education in the world, measured by high levels of achievement and engagement for all students. Successful learning outcomes will give all students the skills, knowledge and opportunities to attain their potential, to pursue lifelong learning, and to contribute to a prosperous, cohesive society.

The ministry seeks to strengthen Ontario’s publicly funded education system through stronger partnerships, and by creating amore integrated early learning and child care system for children and their families.

The wisdom of educators, parents, students and all those working in education, early learning and child care will continue to be sought and valued. The government’s goal is to create a publicly funded education system that can reach every student and help them succeed.

Key Priorities and Results

The ministry’s work is focused on three goals:

• High levels of student achievement

• Reduced gaps in student achievement

• High levels of public confidence.

Student achievement from kindergarten to Grade 12 is a top priority in education. The overall skill and knowledge level of Ontario’s students must continue to rise to remain competitive in a global economy. At the same time, the achievement gap must be closed between students who excel and students who struggle because of personal, cultural or academic barriers.

In addition, the ministry’s goal is to support Ontario’s children and families through a system of responsive, high?quality, accessible, and increasingly integrated early years programs and services. Quality early years and child care programs provide children and their families with support and learning in the early years and contribute to healthy child development.

More details on the responsibilities of the Ministry of Education can be found on the ministry website http://www.edu.gov.on.ca.

3. APPLICATIONOF THE SEV

The Ministry of Education is committed to applying the purposes of the EBR when decisions that might significantly affect the environment are made in the ministry, and as it develops Acts and policies.

The Ministry of Education is committed to helping realize the following vision for Ontario:

“Ontario’s education system will prepare students with the knowledge, skills, perspectives, and practices they need to be environmentally responsible citizens. ” Acting Today, Shaping Tomorrow, p. 6

(http://www. edu. gov. on. ca/eng/teachers/enviroed/action. html)

The ministry recognizes that this SEV applies only to the Ministry of Education itself, and nothing in the SEV affects in any way the legal or fiscal responsibility of school boards, Consolidated Municipal Service Managers/District Social Services Administrative Boards(CMSM/DSSABs), First Nations, child care operators and Ministry of Education transfer payment agencies. Nevertheless, the ministry will encourage the school boards, CMSM/DSSABs, First Nations, child care operators and Ministry of Education transfer payment agencies to practice environmentally responsible behaviour similar to that set out in this SEV.

4. INTEGRATION WITH OTHER CONSIDERATIONS

The Ministry will take into account social, economic and other considerations; these will be integrated with the purposes of the EBR when decisions that might significantly affect the environment are made.

5. MONITORING USE OF THE SEV

The Ministry of Education will ensure that the SEV is taken into consideration when making decisions on a proposed policy or Act that may significantly affect the environment and that these decisions are posted on the Environmental Registry, where appropriate.

The ministry will provide communication, advice and training to ministry staff in the implementation and application of the purposes of the Environmental Bill of Rights.

6. CONSULTATION

The Ministry of Education believes that public consultation is vital to sound environmental decision?making. The Ministry will provide opportunities for an open and consultative process when making decisions that might significantly affect the environment.

7. CONSIDERATIONOFABORIGINAL PEOPLE

The Ministry of Education recognizes the value that Aboriginal people place on the environment. When making decisions that might significantly affect the environment, the Ministry will provide opportunities for involvement of Aboriginal people whose interests may be affected by such decisions so that Aboriginal interests can be appropriately considered. This commitment is not intended to alter or detract from any constitutional obligation the province may have to consult with Aboriginal people.

8. GREENINGOF INTERNALOPERATIONS ANDENERGY CONSERVATION

The Ministry of Education believes in the wise use and conservation of natural resources. The Ministry will support Government of Ontario initiatives to conserve energy and water in its own operations, and to wisely use our air and land resources in order to generate environmental, health and economic benefits for present and future generations.

The Ministry will continue to encourage energy conservation and resource conservation in its own operations by, for example, ensuring that office lights are turned off when possible and office equipment is turned off when not in use and explicitly considering environmental performance of the various options when equipment leases or purchase decisions are made. The Ministry will also continue to educate and encourage staff on the 3Rs – reduction, reuse and recycling – to divert materials from disposal.

Ministry of Education revises its Statement of Environmental Values is a post from: Environmental Law and Litigation

In his latest report, Ontario’s Environmental Commissioner again strongly criticizes the Ontario government for doing too little on climate change. The Ontario government has done a lot, most notably closing coal-fired power plants and adopting the Green Energy Act. In this, Ontario compares well to other provinces and to our foot-dragging federal government. However, Commissioner Miller can only comment on Ontario. He points out that we could and should be doing much more, whatever the political realities of a minority government.
His blog summarizes his disappointment and concern:

“My annual greenhouse gas (GHG) progress report, released today, makes it clear that the Ontario government does not see climate change as an important issue in need of policy attention. I used the famous Keeling Curve graphic on the cover of my report with good reason: within the past few weeks, atmospheric concentrations of carbon dioxide monitored on Mount Mauna Loa in Hawaii crossed the 400 parts per million (ppm) threshold – a disturbing milestone. Why is the Ontario government dragging its feet on this file? The climate change mitigation initiatives and policies outlined by the government to date will not produce a decline in overall emissions. In addition, government energy policy may actually work against the government’s stated GHG reduction goals (more on this below). In my opinion, the government needs to “re-boot” its entire effort in this area. To be blunt, we are running out of time.

Within the transportation sector, the biggest single contributor to GHGs in Ontario is passenger vehicles (cars, pick-ups, vans). While the new federal greenhouse gas emissions standards for light-duty vehicles are a step in the right direction, more needs to be done. In my 2010 report, I highlighted the role that road pricing can play in easing gridlock while reducing GHGs and other air pollutants and urged the government to examine this as a potential option. Metrolinx’s just-released investment strategy, which examines potential funding options to tackle traffic gridlock in the Greater Toronto and Hamilton Area, is a step in the right direction; now we must wait and see how decision makers will use this strategy.

The second largest source of CO2 emissions after transportation is industry. The government is exploring mechanisms to reduce emissions from this sector, likely by putting some form of a price on carbon, though no clear direction or policy is currently evident. This past January, the government posted yet another Discussion Paper [.pdf] on the Environmental Registry to solicit feedback from interested parties that “will inform the design of [a] program.” This paper joins two earlier discussion documents posted on the Registry in December 2008 [.pdf] and May 2009 focusing on the development of a cap-and-trade system for Ontario. More than four years is surely long enough for the government to have taken the pulse of stakeholders, and particularly industry, on this issue – many members of which want a price on carbon – and provide clear policy direction. Most industrial companies now use a shadow carbon cost in their investment, planning and technology decisions. So, the time to move on this at the provincial policy level is NOW! The international community has signaled that some form of regulation with a carbon cost will be here soon. Industry has demonstrated that it is onside with this realization and is just waiting for government leadership.

The reluctance on the part of the government to price carbon is creating unintended consequences in the electricity sector. This sector is where most of Ontario’s emission reductions to date have been achieved, largely through the elimination of coal-fired power generation and the increased penetration of renewables onto the grid. However, due to the need to refurbish a significant portion of Ontario’s nuclear generation assets by the end of this decade, the Ontario Power Authority has indicated that natural gas will increasingly be relied on to fill the supply gap, resulting in a likely and potentially substantial increase in emissions. The problem is that the government is committing us to natural gas generation without factoring in a future price for carbon emissions.

It is important to note that the period of time that we will need the additional generation is only about four years. Gas-fired infrastructure is good for at least 20 years. So why are we building assets that are likely to become stranded and will continue to be greenhouse gas albatrosses for the next two decades? Given the great potential we have for electricity conservation in our system and the further potential for renewable generation, can we not draft a plan that allows us to meet demand during the refurbishment period with conservation initiatives so as not to incur the carbon liability? To the extent that Ontario’s electricity sector has been significantly decarbonized, it represents an excellent source of low-carbon electricity to reduce emissions in other sectors such as transportation.

Ontario’s continued predicted growth in GHG emissions cannot be reconciled with the government’s goal to reduce emissions to 150 megatonnes (Mt) by 2020 and to 35 Mt by 2050. Much more needs to be done to close this gap. In the absence of a renewed effort, the government is failing our future. The window of opportunity to meet a 450 ppm world and to limit the rise in global temperatures to no more than 2°C is closing rapidly. Ontario needs to get out ahead of these developments.”

Ontario Failing Our Future on Climate Change is a post from: Environmental Law and Litigation

Ontario is finally introducing an anti SLAPP law later today, the Public Participation Act, 2013. We worked hard to reach this result, through the Ontario Bar Association, and in cooperation with other stakeholders. Lets hope it is acceptable to the NDP and will be passed with their support.

Summary:

What is a strategic lawsuit?

A strategic lawsuit is a lawsuit that is used to limit expression on matters of public interest.

In most cases, one party claims that another has damaged his or her reputation, usually through a claim of defamation (libel or slander).

How would the legislation work?

Under the proposed law, there would be a fast-track review process for lawsuits alleged to be strategic in nature, rather than legitimate defamation claims. This would include the “legal test” that a judge would use to quickly determine whether or not a case should be dismissed or if it should be allowed to proceed in court.

A request to dismiss would have to be heard by the court within 60 days. This would help minimize wasted time and resources for plaintiffs, defendants and the courts on questionable claims, while allowing legitimate complaints to proceed in a timely manner.

 Text of Bill 83:

Bill 83                                                          2013

An Act to amend the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act in order to protect expression on matters of public interest

Note: This Act amends or repeals more than one Act.  For the legislative history of these Acts, see the Table of Consolidated Public Statutes – Detailed Legislative History at www.e-Laws.gov.on.ca.

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Courts of Justice Act

1.  Clause 19 (1) (a) of the Courts of Justice Act is repealed and the following substituted:

(a)  a final order of a judge of the Superior Court of Justice that is described in subsection (1.1) or (1.2), other than an order made under section 137.1;

2.  The Act is amended by adding the following sections:

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)

Dismissal of proceeding that limits debate

Purposes

137.1  (1)  The purposes of this section and sections 137.2 to 137.5 are,

(a)  to encourage individuals to express themselves on matters of public interest;

(b)  to promote broad participation in debates on matters of public interest;

(c)  to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d)  to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Definition, “expression”

(2)  In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

Order to dismiss

(3)  On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

No dismissal

(4)  A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a)  there are grounds to believe that,

(i)  the proceeding has substantial merit, and

(ii)  the moving party has no valid defence in the proceeding; and

(b)  the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

No further steps in proceeding

(5)  Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

No amendment to pleadings

(6)  Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a)  in order to prevent or avoid an order under this section dismissing the proceeding; or

(b)  if the proceeding is dismissed under this section, in order to continue the proceeding.

Costs on dismissal

(7)  If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

Costs if motion to dismiss denied

(8)  If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

Damages

(9)  If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

Procedural matters

Commencement

137.2  (1)  A motion to dismiss a proceeding under section 137.1 shall be made in accordance with the rules of court, subject to the rules set out in this section, and may be made at any time after the proceeding has commenced.

Motion to be heard within 60 days

(2)  A motion under section 137.1 shall be heard no later than 60 days after notice of the motion is filed with the court.

Hearing date to be obtained in advance

(3)  The moving party shall obtain the hearing date for the motion from the court before notice of the motion is served.

Limit on cross-examinations

(4)  Subject to subsection (5), cross-examination on any documentary evidence filed by the parties shall be limited to one day for each party.

Same, extension of time

(5)  A judge may extend the time permitted for cross-examination on documentary evidence if it is necessary to do so in the interests of justice.

Appeal to be heard as soon as practicable

137.3  An appeal of an order under section 137.1 shall be heard as soon as practicable after the appellant perfects the appeal.

Stay of related tribunal proceeding

137.4  (1)  If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal.

Notice

(2)  The tribunal shall give to each party to a tribunal proceeding stayed under subsection (1),

(a)  notice of the stay; and

(b)  a copy of the notice of motion that was filed with the tribunal.

Duration

(3)  A stay of a tribunal proceeding under subsection (1) remains in effect until the motion, including any appeal of the motion, has been finally disposed of, subject to subsection (4).

Stay may be lifted

(4)  A judge may, on motion, order that the stay is lifted at an earlier time if, in his or her opinion,

(a)  the stay is causing or would likely cause undue hardship to a party to the tribunal proceeding; or

(b)  the proceeding that is the subject of the motion under section 137.1 and the tribunal proceeding that was stayed under subsection (1) are not sufficiently related to warrant the stay.

Same

(5)  A motion under subsection (4) shall be brought before a judge of the court hearing the motion under section 137.1 or, if the motion is under appeal, its appeal.

Statutory Powers Procedure Act

(6)  This section applies despite anything to the contrary in the Statutory Powers Procedure Act.

Application to commenced proceedings

137.5  For greater certainty, sections 137.1 to 137.4 apply in respect of proceedings commenced before the day section 2 of the Protection of Public Participation Act, 2013 came into force.

Libel and Slander Act

3.  The Libel and Slander Act is amended by adding the following section:

Communications on Public Interest Matters

Application of qualified privilege

25.  Any qualified privilege that applies in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed or reported on by media representatives or other persons.

Statutory Powers Procedure Act

4.  Subsections 17.1 (7), (8), and (9) of the Statutory Powers Procedure Act are repealed and the following substituted:

Submissions must be in writing

(7)  Despite sections 5.1, 5.2 and 5.2.1, submissions for a costs order, whether under subsection (1) or under an authority referred to in subsection (6), shall be made by way of written or electronic documents, unless a party satisfies the tribunal that to do so is likely to cause the party significant prejudice.

Commencement and Short Title

Commencement

5.  This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

6.  The short title of this Act is the Protection of Public Participation Act, 2013.

EXPLANATORY NOTE

The Bill amends the Courts of Justice Act to add sections 137.1 to 137.5, which create a process for getting a proceeding against a person dismissed if it is shown that the proceeding arises from an expression made by the person that relates to a matter of public interest (section 2 of the Bill). Subsection 137.1 (1) sets out the purposes of the new sections.

Under subsection 137.1 (3), a person against whom a proceeding is brought may bring a motion to get the proceeding dismissed on the basis that the proceeding arises from an expression made by the person that relates to a matter of public interest (subsection 137.1 (2) defines “expression” for the purposes of section 137.1). If the judge hearing the motion is satisfied of this, he or she must dismiss the proceeding unless the party who brought the proceeding satisfies the judge that the proceeding should not be dismissed because the conditions in subsection 137.1 (4) are met. These conditions include that there are grounds to believe that the proceeding has substantial merit and that the person against whom the proceeding was brought has no valid defence in the proceeding. Once a motion under section 137.1 is brought, no further steps may be taken in the proceeding until the motion is finally disposed of (subsection 137.1 (5)). Section 137.1 also sets out restrictions on amending pleadings in the proceeding (subsection (6)) and sets out rules for awards of costs and damages on the motion to dismiss (subsections (7), (8) and (9)).

Section 137.2 deals with various procedural aspects of the motion to dismiss under section 137.1. These include that the motion may be brought at any time after the proceeding to which it relates has commenced (subsection (1)); that the motion must be heard within 60 days (subsection (2)); and that cross-examination on documentary evidence is limited to one day for each party, unless a judge orders otherwise (subsections (4) and (5)).

An appeal of a motion under section 137.1 must be heard as soon as practicable (section 137.3). Section 1 of the Bill re-enacts clause 19 (1) (a) of the Act to provide for appeals of motions made under section 137.1 to be heard by the Court of Appeal.

Section 137.4 creates a process by which a person who brought a motion under section 137.1 can have a tribunal proceeding automatically stayed if he or she believes that the tribunal proceeding is related to the same matter of public interest that he or she alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1. The stay remains in effect until the motion under section 137.1 is finally disposed of (subsection (3)); however, a judge may, on motion, order that it be lifted earlier if one of the conditions in subsection 137.4 (4) is met.

Section 137.5 specifies that sections 137.1 to 137.4 apply to a proceeding even if it was commenced before the day that section 2 of the Bill comes into force.

The Bill also amends the Libel and Slander Act to add section 25, which states that any qualified privilege that applies in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed or reported on by media representatives or other persons (section 3 of the Bill).

Finally, the Bill amends section 17.1 of the Statutory Powers Procedure Act to provide that submissions for a costs order in a proceeding must be made in writing, unless a tribunal determines that to do so is likely to cause a party to the proceeding significant prejudice. In addition, three spent subsections in that section are repealed (section 4 of the Bill).

Bill 83: Anti SLAPP law at last is a post from: Environmental Law and Litigation

A recent report in a leading peer reviewed medical journal, Neurology, again concludes that exposure to pesticides and solvents is linked to a higher risk of developing Parkinson’s disease. The report evaluates the results of 104 studies from around the world.

Parkinson’s is a progressive degenerative disease that affects a person’s ability to control and coordinate their muscle movement. This deterioration is caused by the gradual reduction in brain levels of dopamine.

The research found that people exposed to bug or weed killers and solvents had an increased risk of developing Parkinson’s disease of between 33 to 80 percent compared to people who were not exposed to them. PD risk was increased by exposure to any-type of pesticides, herbicides, and solvents. Exposure to paraquat or maneb/mancozeb was associated with about a 2-fold increase in risk. It’s been known for years that these pesticides are associated with higher levels of Parkinson’s, but they are still widely used.

Farmers and those living in rural areas tended to have higher exposure levels to pesticides and herbicides. The greater the exposure, the greater the risk.

The study was funded by the Grigioni Foundation for Parkinson’s Disease and the IRCCS University Hospital San Matteo Foundation. The report, by Emanuele Cereda from the IRCCS University Hospital San Matteo Foundation in Pavia, and Gianni Pezzoli of the Parkinson Institute – ICP in Milan, is published in the 28 May issue of  Neurology.

More evidence that exposure to pesticides and solvents may cause Parkinson’s is a post from: Environmental Law and Litigation

Ontario will increase local control over future renewable energy projects, as previously promised by Premier Wynne.

Honourable Bob Chiarelli, Ontario’s Minister of Energy, announced major changes to the planning and procurement of renewable power generation in the province, in his speech to the CanSIA Solar Ontario Conference. His press release:

“Working with the Ontario Power Authority (OPA) and municipalities, the province will develop a competitive procurement process for renewable projects over 500 kilowatts (kW). The new process will replace the existing large project stream of the Feed-In Tariff (FIT) program and better meet the needs of communities. It will require energy planners and developers to work directly with municipalities to identify appropriate locations and site requirements for any future large renewable energy project.

To further strengthen municipal participation and support communities, Ontario will:

• Revise the Small FIT program rules for projects between 10 and 500 kW to give priority to projects partnered or led by municipalities.
• Work with municipalities to determine a property tax rate increase for wind turbine towers.
• Provide funding to help small and medium-sized municipalities develop Municipal Energy Plans – which will focus on increasing conservation and helping to identify the best energy infrastructure options for a community.

Ontario is also renewing its commitment to small renewable energy projects by making 900 megawatts (MW) of new capacity available, between now and 2018, for the Small FIT and microFIT programs. This fall, the OPA will open a new procurement window for both programs, and starting in 2014, annual procurement targets will be set at 150 MW for Small FIT and 50 MW for microFIT. These measures are expected to create 6,400 jobs and produce enough electricity each year for more than 125,000 homes.

Engaging municipalities is part of the new Ontario government’s plan to build strong communities, powered by clean, reliable energy.”

The changes are not retroactive. A copy of his speech is attached: Minister Chiarelli – Keynote

Ontario to give municipalities more control of siting large wind projects is a post from: Environmental Law and Litigation

Shawn and Trisha Drennan farm in the Township of Ashfield-Colborne-Wawanosh, where K2 propose to develop a wind power project of 140 wind turbines (270 megawatts).  As discussed in our earlier blog, the Drennans started a lawsuit, hoping to prevent construction of the wind farm. They claim that the regulatory scheme for granting approval to wind turbines violates their right to security of the person under the Canadian Charter of Rights and Freedoms. They also want damages in nuisance and an injunction to stop the renewable energy approval process established by Ontario’s Environmental Protection Act (EPA).

On May 15, Mr. Justice A. Duncan Grace of the Ontario Superior Court of Justice stayed the lawsuit. He concluded that the Drennans’ action was premature, and must be stayed until the statutory process established by the EPA is complete.  See  Drennan v. K2 Wind Ontario Inc.

Justice Grace noted that the authority to review a MOE Director’s decision lies with an administrative tribunal (i.e., the Environmental Review Tribunal (ERT)), not the court, and that this allocation of responsibility will be respected except in rare circumstances.  This was not an exceptional case.

He found that the renewable energy approval and appeal process was not patently inadequate or unfair.  Nor was there any basis for suggesting that the legislative scheme is “arbitrary”, or for finding that the Director does not act in good faith.  Further, there was no basis to suggest that the  ERT does not conduct a meaningful inquiry – Justice Grace pointed to the extensive ERT decision in Erickson v. Director, MOE, in which the ERT dealt with complex factual and legal issues.

Justice Grace also found that the court does not automatically assume jurisdiction just because the Drennans made a Charter claim.

He recognized that an action initiated on the basis of alleged harm in the future is not premature in all cases.  However, in this case, that alleged by the Drennans is speculative; the Director’s decision is subject to challenge and the Drennans may ultimately be successful at the end of the regulatory process.

Nor should the court exercise discretion because the plaintiffs seek remedies not contemplated under the statutory scheme.  Although the ERT cannot grant a remedy of declaring statutory provisions constitutionally invalid, it may disregard provisions that offend the Charter.  The ERT does not have jurisdiction to make a monetary award; a nuisance can only occur if the proposed wind project is approved and constructed close to the Drennan farm.  The ERT also lacks the power to grant injunctive relief, but can grant a stay of the Director’s decision. As K2 must overcome concerns of the Drennans during the regulatory process to construct their project, there is no need for injunctive relief.

by Jackie Campbell and Dianne Saxe

Drennan Anti-Wind Lawsuit Stayed Until Tribunal decides is a post from: Environmental Law and Litigation

Interested in the Castonguay appeal to the Supreme Court of Canada? Everything is now online, except the decision. This includes the webcast (see below).

Not many environmental cases reach the Supreme Court of Canada.

In this one, the appellant, Castonguay Blasting Ltd., was working as a subcontractor for a construction project commissioned by the Ministry of Transportation of Ontario for the widening of a provincial highway, when one of its blasting operations went awry and rock fragments known as “fly rock” were released into the air by an explosion. The fly rock landed on and damaged a vehicle and a house on nearby private property, but no one was injured. The incident was reported to the Ministry of Labour and to the Ministry of Transportation, but not to the Ministry of the Environment, which only learned of it several months later.

Castonguay Blasting was thus charged with failing to report the discharge of a contaminant into the natural environment contrary to s. 15(1) of the Environmental Protection Act.

The trial judge dismissed the charges on the basis that there was no justification for concluding that ss. 14 and 15 of the Environmental Protection Act should apply in the circumstances and that the equities of the case lent no support to the justification for the prosecution. The Superior Court allowed the appeal and entered a conviction. The majority of the Court of Appeal dismissed the appeal. The Supreme Court of Canada gave Castonguay permission to appeal further, and heard the argument on May 17.

It’s fun to watch the webcast. Here are the principal factums. The LOW-CELA factum may be viewed here. Then decide yourself who made the better argument. I know who I think will win…

Watch Castonguay flyrock appeal at Supreme Court of Canada is a post from: Environmental Law and Litigation

A cabin owner illegally built a cabin within a conservation reserve. The owner was charged. As part of plea negotiations, the cabin owner proposes a substantial land exchange with the MNR: 40 hectares of new land for the 0.13 where the cabin now stands. MNR now plans to amend the conservation reserve regulation to allow the swap, which will increase the protected Provincially Significant Wetland.

Louck Lake Wetland Conservation Reserve is a 265 hectares (ha) conservation reserve located in central Ontario about 50 km south of North Bay. It protects a large portion of the Louck Lake Provincially Significant Wetland. Wetlands are extremely important ecological features, severely threatened by rampant “development”.

An unauthorized cabin was built within the conservation reserve on Lot 4, Concession 7, Laurier Township. As the occupation is contrary to the Provincial Parks and Conservation Reserves Act, 2006, the cabin owner was charged with this offence.

As part of the legal negotiations, the presumably remorseful cabin owner proposed a land exchange with the Ministry of Natural Resources as part of his penalty. The exchange would transfer 40 ha of his adjacent private property including 24 ha of provincially significant wetland, to the Ministry in exchange for 0.13 ha of the (now damaged) conservation reserve land on which the illegally constructed cabin is located. Since approximately 60 per cent of the 40 hectares of acquired lands contains provincially significant wetland, this significant addition would further the protection of provincially significant elements of Ontario’s natural heritage and maintain ecological integrity consistent with the Provincial Parks and Conservation Reserves Act, 2006.

The proposed Amendment to the Crown Land Use Policy Atlas in order to facilitate a land exchange that will resolve an unauthorized occupation within the Louck Lake Wetland Conservation Reserve (C73) – Amendment #2012-010, is posted as EBR Registry Number 011-8881. Public comments may be made.

It reminds me of a similar case in Bruce National Park, years ago…

Enforcement leads to nature reserve land swap is a post from: Environmental Law and Litigation

Kelly Cove Salmon Ltd. pleaded guilty to violating the Fisheries Act. Its illegal use of a pesticide contributed to substantial lobster kills in southwestern New Brunswick. The court ordered Kelly Cove Salmon Ltd. to pay a total of $500,000, one of the largest and most significant penalties ever levied in Canada under the Fisheries Act.

$50,000 of the penalty will go to the Environmental Damages Fund, another $250,000 will be directed towards scholarships, another $100,000 will be directed in support of environmental studies and research projects, and the remaining $100,000 is the court fine.

Kelly Cove Salmon Ltd. pleaded guilty to releasing cypermethrin into fish-bearing waters in southwestern New Brunswick. Cypermethrin is an agricultural pesticide that is not permitted for use in marine environments because of its proven toxicity to crustaceans, including lobsters and shrimp. Kelly Cove used the pesticide to address a major sea lice infestation in their salmon farm, knowing that it was illegal to do so. Sea lice is a serious pest of open water fish farms, and also one of their major threats to wild fish stocks.

On November 19, 2009, Environment Canada was informed that lobster fishers in southwestern New Brunswick were finding dead and dying lobsters in their traps. Environmental Enforcement officers subsequently collected samples of the affected lobsters from Grand Manan and Deer Island, as well as fish, mussels and kelp in the areas where the lobsters were found. These samples were sent to Environment Canada’s lab in Moncton for forensic analysis. Results proved the dead lobsters collected in Grand Manan and Deer Island were exposed to cypermethrin.

An intensive two-year investigation by Environment Canada’s enforcement officers and Atlantic Laboratory for Environmental Testing resulted in this successful prosecution. Another reason for caution about farmed salmon.

$500,000 Fisheries Act fine for illegal pesticide use on salmon farm is a post from: Environmental Law and Litigation

Osgoode Hall Law School honoured eight distinguished lawyers with awards for their exceptional contributions to the legal profession and service to the community at the Dean’s Annual Alumni Reception on Wednesday, May 15, at Osgoode Hall in downtown Toronto. One was Dianne. Details here.

Honoured by Osgoode is a post from: Environmental Law and Litigation

Warmest congratulations to Clay Ruby for his latest public interest victory: preventing the destruction of a shared mature maple tree by one of the owners. Here is the decision in Hartley vs Cunningham, and the press release on this landmark tree ruling. Look for our analysis in next month’s Lawyers Weekly.

A big win for trees and tree lovers is a post from: Environmental Law and Litigation

The Divisional Court is grappling with a complex battle between two possibly overlapping First Nations over whether a Northern Ontario hydropower project is being lawfully evaluated under the Environmental Assessment Act and an agreement with three First Nations: Cree Nation (MoCreebec Council) v. Ontario. There is a conflict over the proper decision-making process for the project.

As Justice Molloy put it:

“[1] MoCreebec Council of the Cree Nation commenced a judicial review application in this Court by notice dated November 17, 2010. The application relates to a proposed hydroelectric generating project in the Moose River/James Bay area. The applicant was one of the parties to an agreement with the Ontario government in 1994 with respect to how the project was going to proceed. The applicant now contends that Ontario has failed to comply with its obligations under that agreement and under the Environmental Assessment Act. The application for judicial review seeks various forms of relief requiring Ontario to comply with those obligations and prohibiting further development that is not in compliance. In support of the application was filed the affidavit of Allan Jolly, the Acting Chief of the MoCreebec Council.

[2] Moose Cree First Nation is named as a party respondent in the application. Moose Cree brought a motion to strike various aspects of the judicial review application and portions of the supporting affidavit. .. From the perspective of the moving party, one principal issue remains: the capacity of MoCreebec to bring this application. I also have some concerns about the form of the proceeding itself.”

Moose Cree, which is defending the the Lower Mattagami project, will own up to 25% of it.

Although the case began in 2010, it is not yet clear whether the plaintiff, the “MoCreebec Council of the Cree Nation“, actually has legal status to sue. This will be argued before a full Divisional Court panel in October:

“[17] The capacity (or status) issue is by no means a simple matter factually or legally, and it is one with profound consequences for the MoCreebec Council, not just with respect to this application, but to their status generally. In light of the complexity of the issue, the inadequate state of the record before me at present, and the significant public policy issues raised, in my view it is preferable that this motion be heard by a three-person panel of the Divisional Court, rather than by a single judge…

[21] The moving party Moose Cree First Nation shall deliver a notice of motion and, if so advised, affidavit material by May 10, 2013. The notice of motion shall clearly setting out the precise relief sought and the grounds for taking that position. Affidavit evidence may also be filed, particularly with respect to the practical problems of having an application brought by MoCreebec with the Moose Cree as a respondent, given there may be some overlap between the membership of both groups, and any other issues that may be contentious relating to the capacity of the MoCreebec Council to sue.”

Cree in court battle over environmental assessment and waterpower is a post from: Environmental Law and Litigation

The Ministry of the Environment’s Modernization of Approvals process is starting to make a real difference: kudos to Marcia Wallace, Doris Dumais and the others involved. It still takes far too long to get many kinds of Environmental Compliance Approvals (often well over a year), but the backlog is decreasing, and some upcoming changes should really help. This is essential: the inordinate delays in obtaining approvals force many organizations to incur significant economic damage or break the law, every year. The more law-abiding organizations are, the more stressful they find these long approvals delays, and the more they detract from potential investment in Ontario.

About 2400 registrations have already occurred on the Environmental Activities and Sector Registry, the instant, permit-by-rule system for low risk, routine activities. (The registry has the additional benefit of creating a level playing field, by assuring consistent conditions for similar activities.) Not coincidentally, the number of annual applications for environmental compliance approvals has dropped by more than 2,000. The shift should continue as additional activities and sectors are added to the registry.

Now the Modernization process is shifting to the full scale Environmental Compliance Approvals. The MOE is already doing more to clarify what information is required in a good application for an Environmental Compliance Approval- a guide and technical checklist are available on line. By next spring, the entire application is expected to be filed online. This should automatically reject incomplete applications, and provide real-time tracking of all accepted applications; both should drive down wait times. On line applications should also improve public access to approvals and their supporting documents. Once the system works, of course; so far, IT challenges have created a barrage of headaches, including a brief “$10 Tuesday”, when all EASR registrations could be had for the bargain price of $10. That particular bug was fixed fast…

We hear that the Modernization of Approvals process is starting to trigger transformation across the ministry, and that other ministries are also looking to piggyback on the system. Morale among the review engineers is reportedly improving too, now that they are released from reviewing so many boring, routine applications, and from the tedious job of tracking down missing components from poor quality applications. Instead, they are spending more of their time using their technical skills on more challenging applications where a knowledgeable reviewer can make a difference.

I sometimes joke that I’d be out of business if the MOE were always fair and efficient, and we’ve never been busier. But the Modernization process is looking like a big step in the right direction. And that’s good news for anyone who cares about the environment that the MOE tries to protect. Including me.

Modernization of Approvals a big step in the right direction is a post from: Environmental Law and Litigation

The Ministry of the Environment’s attempt to impose unlimited personal liability on the directors of a parent company,  apparently because they were directors when historic contamination was discovered and/or being cleaned up on and near the land of a subsidiary, continues in front of the Environmental Review Tribunal. The Ministry has stated, in writing, that none of the former officers or directors caused the contamination. On Tuesday, the Tribunal began hearing motions (see Baker Notice of Motion) by some former officers and directors of Northstar Aerospace (Canada), owner of the contaminated site, and some former officers and directors of its parent company, Northstar Aerospace Inc.. The former officers and directors are seeking particulars of the Ministry’s case against them. Are they alleged to have been at fault in some way? If so, what is it that the Ministry says they did wrong? If their liability is alleged to be no-fault, what gives the ministry the right to impose a no-fault cleanup order on directors and officers of a parent company, who did nothing wrong personally, and whose company  did not own or operate the contaminated site?

The motion will continue on May 27.  The former officers and directors are appealing the cleanup order against them, saying that it is unconstitutional, issued without jurisdiction, and unfair.  To see the Order, click Director’s ORDER .

Northstar former directors case continuing before Tribunal is a post from: Environmental Law and Litigation

Ecojustice has intervened in an appeal before Ontario’s Environmental Review Tribunal, hoping that they will enforce a public trust in water resources.

Nestle Canada Inc. (“Nestle”) runs Ontario’s largest water bottling operation. They pump groundwater from two different sets of wells in the Guelph area. Each well requires a Permit to Take Water (“PTTW”) from the Ministry of Environment (“MOE”) in order to operate.

Nestle recently had the PTTW for one of their wells renewed by the Ministry. The renewed permit contains new conditions that require reduced water takings during periods of summer drought1. Nestle appealed these conditions to the Environmental Review Tribunal (“ERT”).

Ecojustice intervened in the appeal on behalf of public interest groups and/or local citizens with a long history of opposing Nestle’s bottled water operations in the area – the Wellington Water Watchers (“WWW”) and the Council of Canadians (“CoC”).

While the Ministry of the Environment is the main party defending the conditions, they have agreed to a settlement of the appeal. Ecojustice is asking the ERT to continue the hearing, in order to prevent any settlement agreement from weakening the anti-drought conditions. Ecojustice argues that the principles of the public trust doctrine (“PTD”) provide an additional basis for upholding the original conditions. They  argue that the PTD operates both in addition to the OWRA (as a background principle of the common law which has not been extinguished by the statutory regime), and within the OWRA itself (as a principle aiding in the interpretation of the statute’s purpose and key permitting provisions). They say:

“? We live in an era of increasing pressures on freshwater resources due to population pressures, industry demands, and climate change. In such times our governments should recognize their duty to manage these resources as common resources for the benefit of the public, now and in the future.

o Freshwater resources are part of the commons. The government holds the resource in trust for the benefit of the public – now and in the future.

o Public rights to water should be given priority over private, commercial uses.

o One-off permitting decisions that approve large commercial uses without considering the long-term needs of the local community and environment could squander our endowment of freshwater.

o Water is a fundamental resource. The MOE should be lauded for the progressive conditions imposed in this case.

o Provincial governments are legally responsible for the protection of groundwater supplies. Ontario and other Great Lakes jurisdictions have committed to a precautionary approach in managing water.

o Water bottling businesses, including Nestle, must only be allowed to draw from Ontario’s public groundwater supplies under adequate conditions.”

Final submissions have been filed both for and against the motion to withdraw the appeal as part of a settlement agreement, and we await a decision from Member VanderBent. Here  are the submissions of the Ministry of Environment, Nestle, and Ecojustice.

Will Environmental Tribunal enforce public trust in water? is a post from: Environmental Law and Litigation

The Ontario Court of Appeal has upheld a decision of the Environmental Review Tribunal, refusing to allow an innocent landowner, City of Kawartha Lakes, to lead evidence about the actual polluters. Everyone agreed that the City was completely innocent of the fuel spill, which flowed onto municipal property through no fault of their own. But they were still ordered to clean it up.

The Court agreed that s. 157.1 of the Environmental Protection Act permits the Ministry of the Environment to issue no-fault orders to the owners of property requiring them to prevent, decrease or eliminate an adverse effect on the natural environment that may result from the presence of the contaminant on their property. In this case, that included the City. The City argued that, due to the “polluter pays” principle, the order should be directed against the actual polluters, instead of themselves.

“11….the Tribunal found that evidence of who was at fault for causing the spill should not be permitted.  It held that no evidence of the appellant’s innocence was necessary, since that was agreed, and evidence of who was at fault was not relevant since it would be of no assistance to the Tribunal in deciding whether the Director’s order to the appellant should be revoked or upheld.  …Evidence of others being at fault for the spill was simply irrelevant to the Tribunal’s task of determining whether the Act’s objective of environmental protection meant that the Director’s order should be upheld.  The Tribunal concluded that, despite this evidentiary ruling, in proceeding with its appeal, the appellant was entitled to argue that its status as an innocent owner together with the “polluter pays” principle should relieve it of the Director’s order.

[12]       On the appeal itself, the Tribunal explicitly considered the issue relating to the “polluter pays” principle.  It found that if environmental work was necessary, the environmental protection objective of the Act takes precedence over the “polluter pays” principle.  It concluded that it was not enough for the appellant to rely on its status as an innocent victimized owner without addressing how the legislative objective of environmental protection would be met if the Director’s order were revoked.  Since the appellant presented no evidence of an environmentally responsible solution in the event of revocation of the Director’s order, the Tribunal dismissed its appeal.”

The City argued, with considerable force, that they could not present evidence of “an environmentally responsible solution in the event the revocation of the Director’s order”, precisely because they were prevented from showing that the actual polluters could and should clean the contamination up.  Nevertheless, the Court agreed with the Tribunal:

“[19]       In this case, all agree that the appellant is innocent of any fault for the spill.  I agree with the Tribunal and the Divisional Court that evidence that others were at fault for the spill is irrelevant to whether the order against the appellant should be revoked.  That order is a no fault order.  It is not premised on a finding of fault on the part of the appellant but on the need to serve the environmental protection objective of the legislation.

[20]       The tribunal had to determine whether revoking the Director’s order would serve that objective.  Deciding whether others are at fault for the spill is of no assistance in answering that question.  Evidence of the fault of others says nothing about how the environment would be protected and the legislative objective served if the Director’s order were revoked.  Indeed, by inviting the Tribunal into a fault finding exercise, permitting the evidence might even impede answering the question in the timely way required by that legislative objective. ”

The City is therefore left to its existing lawsuit under section 100.1 of the Environment of Protection Act, which permits it to seek to recover its costs from persons who had control of the pollutant. And other innocent spill victims will now have to really think twice before calling the Ministry of the Environment.

Innocent owner Kawartha Lakes loses at Court of Appeal is a post from: Environmental Law and Litigation

Toxco Waste Management Ltd., of Trail, B.C., was ordered to pay $17,500 to the Environmental Damages Fund (EDF) by the Provincial Court of British Columbia after pleading guilty to importing waste lithium batteries exceeding the limit set out in its import permit. This action contravened the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (EIHWHRMR) of the Canadian Environmental Protection Act, 1999 (CEPA, 1999). No fine was imposed.

$17,500 penalty for importing hazardous batteries without permit is a post from: Environmental Law and Litigation

Access to some federal and provincial environmental monitoring data on air, water, land and biodiversity in the oil sands is now available through an online data portal (www.JointOilSandsMonitoring.ca). The portal is a result of the Joint Canada–Alberta Implementation Plan for Oil Sands Monitoring announced in February 2012.

Some Alberta oil sands monitoring data now public is a post from: Environmental Law and Litigation