OLDMAN DAM: ENVIRONMENTAL ASSESSMENT AND THE CONSTITUTION FEBRUARY 13, 2012

Overview Federal and Provincial Legislative Powers relating to the Environment Oldman Dam Project Federal Legislative Powers (EA) –Environmental Assessment and Review Process Guidelines Order –Canadian Environmental Assessment Act –Possible EA Law Reforms (national concern projects, sustainability assessment)

Federal and Provincial Legislative Powers (Environment) “Federal patchwork superimposed on provincial carpet” Provincial Powers (s.92, 92A) –Property and civil rights –Matters of a merely local or private nature –Lands, mines, minerals; non-renewable natural resources; forestry; electrical energy –Local works and undertakings

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

Delimiting Federal and Provincial Powers Interpretative Tools and Legal Principles –Exclusive vs. Concurrent Jurisdiction –Administrative vs. Legislative Interdelegation –Interjurisdictional Immunity –Role of Territory and Ownership –Treaty Implementation

Fisheries Powers R. v. Fowler –Wood debris deposited into a stream contrary to Fisheries Act –No evidence actual harm to fish, habitat –Not within federal legislative authority R. v. Northwest Falling Contractors –Diesel oil - deleterious substance deposited into waters frequented by fish –Evidence of harm to fish –Within federal authority

Criminal Law Power R. v. Hydro-Quebec PCBs released into Quebec stream by Hydro-Quebec facility contrary to Canadian Environmental Protection Act Tests for valid exercise of criminal law power (RJR MacDonald): –Legitimate public purpose –Prohibition of an activity –Penalty

Criminal Law Power R. v. Hydro-Quebec Issue: does CEPA use appropriate tools to pursue the legitimate public purpose? Is CEPA about environmental protection or control of toxic substances? Laforest (majority) –lengthy process identify toxic substances –regulatory measures to reduce, control justifiable so long as combined with prohibitions

Peace Order and Good Government Powers Anti-Inflation Reference, Crown Zellerbach, R. v. Hydro-Quebec Emergency Branch of POGG National Concern Branch of POGG –Singleness, Distinctiveness, Indivisibility Atomic Energy, Marine Pollution justified under POGG Toxic Substances not justified

Oldman Dam Project

Alberta government initiated in 1980s Irrigation benefits to 200 farmers plus up to 25 MW electricity Peigan First Nations (Milton Born with a Tooth) and Friends of the Oldman River (FORS, Martha Kostuch) opposed project Peigan Reserve 12 km downstream from Oldman Dam site

Oldman Dam Environmental Effects Loss of riparian habitat (cottonwood forests Loss of cold-water trout habitat Mercury contamination Increased dust and related air pollution

Oldman Dam Project Alberta prepared environmental assessment, found no significant effects Federal Environment Minister refused to conduct EA under EARGO although Navigable Waters Protection Act permit and Fisheries Act authorization required FORS launches Rafferty-style application for judicial review Application denied at trial, appealed successfully

Oldman Dam Legal Issues Statutory Validity Is the Guidelines Order authorized by s. 6 of the Department of the Environment Act? Is the Guidelines Order inconsistent with the Navigable Waters Protection Act and the Fisheries Act? Does the Guidelines Order apply to projects other than new federal projects?

Oldman Dam Legal Issues Obligations of Ministers Is the Guidelines Order applicable to the Oldman Dam Project? Are the Ministers "initiating departments"? Is the Navigable Waters Protection Act binding on the Crown in right of Alberta?

Applicability of the Guidelines Order Transport Canada decision-making authority for NWPA; DFO not decision- making authority for Fisheries Act No affirmative regulatory duty on DFO Proponents can construct dam without DFO authorization (not unlawful to build dam without authorization but if you do you may be in jeopardy

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

Oldman Dam Analysis of Constitutional Issues Authority to conduct a federal assessment of a proposal? EA is merely a component of federal decision-making Distinguish between subject matter that brings feds in as decision-maker from broader range of issues to be considered in making decision

Constitutional Limits on Issues to be Considered in Decision? No for straightforward projects such as rail lines. Once jurisdiction to make decision established, integrated decision can be made that takes into account how proposal affects issues with provincial jurisdiction Scholarly opinion divided on projects subject to a narrower federal role

Applying Oldman Decision to CEAA Constitutional Validity? Is CEAA constitutionally valid? Does CEAA address Supreme Court’s determination that Fisheries Act creates no affirmative regulatory duty?

Applying Oldman Decision to CEAA Constitutional Validity? EA required when a “federal authority” exercises a power or performs a duty or function in respect of a “project” such as: –Acts as proponent of a project –Provides financial assistance for project –Disposes of federal lands for project –Issues a permit or licence included on Law List regulations

Applying Oldman Decision to CEAA Reforms Under any circumstances is it constitutionally valid for federal EA law to apply to project for which government has no decision-making authority? Constitutionallly valid for federal EA law to establish list of nationally significant projects requiring federal assessment? Constitutionally valid for federal law to require sustainability assessment?