Articles 2019

In the past, relocation of large quantities of soil excavated in construction projects was sporadically regulated by provincial governments. In 2019, both Ontario and Québec governments are proceeding with new regulatory schemes that will impose legal requirements on the movement and disposition of excavated soil. This article reviews the requirements imposed by the new regulatory schemes and their impact in both jurisdictions.

In July 2019, a fine of $2.7M was levied against Kirby Offshore Marine Operating LLC for violations of the Fisheries Act. The news raises a broader question: are fines for environmental offenses rising faster than inflation? If so, to what end? Is there any indication that these larger fines are changing behaviour? This review looks at the legislative changes in the minimum and maximum environmental fines, and whether these changes are actually having any real effects on the quantum of fines.

The new Impact Assessment Act came into force at the end of summer, changing Canada’s long-standing regime from environmental assessment to impact assessment. Federal decisions to approve projects will now be made after evaluating whether the project is in the “public interest”, replacing the previous test of avoiding “significant adverse environmental effects”. This article explains five things all participants need to know about the new Act as they address its new requirements and processes.

Published on August 1, 2019, the CSA Staff Notice 51-358 Reporting of Climate Change-related Risks, highlights the disclosure obligations of a securities issuer in light of climate change-related issues as they relate to the issuer's MD&A and AIF. This article explains those risks and their impact.

The Impact Assessment Act and two important regulations came into force in August 2019, transferring greater oversight of the federal environmental assessment process to the new Impact Assessment Agency. This article summarizes these oversight powers and how they have changed from the previous regime.

Canada’s subsidies of fossil fuels (particularly diesel) support over-fishing by industrial fleets, and undermine the progress of recent amendments to the Fisheries Act to rebuild devastated marine fish and shark populations. More attention and concrete action through World Trade Organization law reform is needed to transition Canada out of fuel subsidies and ultimately enhance fish and shark stocks.

This article considers the recent bill of environmental rights that one city granted to Lake Erie. It examines the history of granting legal rights to nature, as well as arguments for and against. While reluctant to dismiss granting nature legal rights as largely a façade, the authors conclude that more complex regulatory solutions premised on cooperation between multiple stakeholders seem more likely to deliver a viable, long-term solution for the Lake.

The decision in Redwater Energy Corporation (Re) may, for now, resolve the uncertainty regarding the end‐of‐life obligations owed by an AER licensee debtor in an insolvency proceeding. This article describes the likely consequences of the decision for the federal insolvency regime, energy industry, debt financing, and directors of oil and gas companies.

The SCC’s decision in Orphan Well Association v. Grant Thornton Limited says there are end-of-life remedial obligations associated with a bankrupt’s non-productive wells that have to be addressed. These remedial obligations are a prioritization of the use of the bankrupt’s assets for compliance with its regulatory obligations to clean up under the terms of its licenses.This article provides an overview of the impact of the decision on insolvency professionals and secured creditors.

The potential conflict between federal insolvency law and provincial environmental law that came to a head in Orphan Well Association v Grant Thornton Ltd was settled by the Supreme Court of Canada on January 31, 2019.