Articles

What level of information does a proponent need to start an EA? This question was addressed in Carhoun and Sons Enterprises ltd. v Canada (Attorney General) . A regulatory authority has considerable discretion when exercising its decision-making authority to issue authorizations under the CEAA when a project proposal is submitted. Early referral of an incomplete application would mean completed applications would have to await processing of incomplete applications to their detriment.

OBA section editors interview David McRobert, former In-house Counsel and Senior Policy Advisor at the Environmental Commissioner of Ontario, 1994-2010.

In Eagleridge International Ltd. v. Newfoundland and Labrador, following a change of government, the new provincial Minister of Environment and Conservation withdrew approval for the construction of a gravel road intended to facilitate mineral exploration on lands and ordered that the project be subject to a full environmental assessment (EA). Eagleridge was entitled to proceed in accordance with the release from the full EA granted by the Minister before the change in government.

In October, the federal government made further announcements regarding the federal carbon-pricing “Backstop”, providing details on where the pricing system will apply and how the revenues for provinces and territories will be used. The Backstop ensures a national carbon-pricing system that applies to greenhouse gas emissions from a broad set of sources, which is revenue-neutral to the federal government. Ontario and Saskatchewan have commenced legal actions to challenge the Backstop.

In October, Canada published new regulations prohibiting the import, sale, and use of all forms of asbestos, as well as the manufacture, import, sale, and use of products containing asbestos filaments. In addition, under amendments to the Environmental Protection Act, Canada now prohibits the export of asbestos in all its forms. This article gives an overview of the affected industries, exceptions and activities not covered, as well as the new import and use permit regime.

The Court of Appeal in the Hague upheld the District Court's order that the Netherlands reduce CO2 emissions by 25% relative to 1990 levels by the end of 2020. The Court concluded that "a reduction obligation of at least 25% by end - 2020" is in line with the State's duty of care." The Appellate Court rejected the argument that there were multiple pathways to achieving the higher threshold of 2oC and concluded that the technology to achieve these pathways was uncertain and unrealistic.

The Fisheries Act remains the only legislation that directly addresses the protection and conservation of fish and fish habitat. Significant amendments to the Fisheries Act are underway through Bill C-68, now before the Senate. Some of the most important will restore the broad habitat and fish protections that were removed in 2012. This article reviews what changed in 2012, why those changes occurred, and what protections Bill C-68 proposes to restore to the Act.

On June 22, 2018, Canada’s Federal Court released its ruling in Le Groupe Maison Candiac Inc. v Canada (Attorney General) allowing the federal government to restrict development on private land to protect the western chorus frog. The decision weighs heavy on a number of industries as they consider the scope and implications of emergency orders designed to protect at-risk species under SARA.

Stan and Albert report on the Divisional Court's September 4, 2018 decision in Hamilton Beach Brands Canada, Inc. v. Ministry of the Environment and Climate Change, 2018 ONSC 5010.

Indemnities are a tool for allocating risk. Contracting parties often use indemnities to achieve certainty and finality in their affairs. This requires drafters to be conscious of the assumptions and inferences that a court might draw when interpreting the contract. A recent Ontario Court of Appeal decision, Weyerhaeuser v. Ontario (Attorney General), 2017 ONCA 1007, highlights the need for clear language to establish air-tight indemnities.