Blog authored by Richard D. Lindgren, CELA Counsel
As a specialty legal aid clinic in Ontario, CELA is often involved in precedent-setting appellate cases which involve the interpretation or application of the province’s environmental laws.
For example, in the Canadian Pacific case, CELA intervened in the Supreme Court of Canada (SCC) to support the Ontario government in responding to a defendant’s Charter-based argument that the main anti-pollution prohibition in Ontario’s Environmental Protection Act (EPA) was overbroad and void for vagueness.
Similarly, in the Castonguay case, CELA intervened in an SCC appeal to assist the province in defending the EPA’s mandatory duty upon persons to self-report incidents to Ontario’s Environment Ministry when contaminants have been discharged into the environment.
The justification for CELA’s participation in such cases is that the provincial laws at issue are crucial parts of the overall legislative “safety net” that: (a) protects the environment and public health; (b) ensures access to environmental justice for all Ontarians; and (c) prevents CELA’s client communities from being disproportionately impacted by polluting facilities or noxious activities across Ontario.
Accordingly, these interventions typically raise fundamental legal issues that engage, or potentially affect, the interests of CELA’s clients, such as low-income persons and vulnerable, disadvantaged, racialized or Indigenous communities.
This public interest rationale also explains why CELA intervenes in cases which originate in other provinces, but which involve federal environmental laws that apply throughout Canada, including Ontario.
For example, CELA intervened in the SCC in the well-known Hydro-Quebec case. Factually, this case arose from a wastewater discharge into a Quebec river, but the legal focus was on the constitutionality of the federal regime under the Canadian Environmental Protection Act (CEPA) for identifying and regulating toxic substances (e.g. lead, mercury, PCBs, etc.).
CELA likewise intervened in the landmark Spraytech case in the SCC. This case also arose in Quebec in relation to a municipal pesticide by-law, but included larger legal questions about whether the restrictive by-law could validly supplement federal and provincial pesticide laws.
Similarly, CELA intervened in the recent SCC appeals arising from court references in Saskatchewan, Ontario, and Alberta which considered whether the federal carbon pricing law (i.e. Greenhouse Gas Pollution Pricing Act) is constitutionally sound. Given its system of regulatory charges/income tax rebates, this legislation is important to low-income energy consumers in Ontario, particularly those who are disproportionately affected by climate change impacts.
In addition, CELA intervened in the SCC in the leading Oldman River decision, which centred on the construction of a provincial dam on an Alberta river. Nevertheless, the case involved nationally significant legal questions about the constitutional and statutory validity of the federal environmental assessment (EA) process.
Subsequent to the Oldman River case, CELA intervened in the SCC’s MiningWatch case. This matter involved a mine in British Columbia, but the case raised a fundamental question of statutory interpretation under federal EA law: when determining the scope of the EA process, can federal authorities omit or “screen out” key components of the project as proposed by the proponent?
The latest example of an intervention by CELA in support of a robust federal EA process is the constitutional reference held by the Alberta Court of Appeal in February 2021. Although this case originated in Alberta (and may end up in the SCC), CELA represented Ontario-based clients that received the Court’s permission to intervene in this important reference.
This case started in 2019 when the Alberta government formally requested the Court’s opinion on whether the federal Impact Assessment Act (IAA) and its project list regulation are unconstitutional, in whole or in part.
Alberta – supported by Ontario, Saskatchewan and various industry associations – argued that the federal Act is a “Trojan horse” that unlawfully intrudes into matters of exclusive provincial jurisdiction over natural resources and local works and undertakings.
Conversely, Canada – supported by CELA’s clients, other environmental groups, and two First Nations – relied upon the Oldman River judgment to argue that the Act is wholly within Parliament’s constitutional authority under various heads of power in section 91 of the Constitution Act, 1867.
After hearing the parties’ and intervenors’ arguments over the four-day proceeding, the Alberta Court of Appeal reserved its decision, which is expected to be released later this year.
Depending on its outcome, the Alberta reference may have profound implications for CELA’s client communities who are interested in, or potentially affected by, environmentally significant projects (e.g. large-scale mines) that are proposed in Ontario but are subject to the IAA.
In essence, the IAA establishes an information-gathering and decision-making process in relation to major projects that may adversely affect matters within federal jurisdiction. Once triggered, the IAA process requires a detailed, evidence-based examination of the environmental, social, economic and health effects of the proposed project. The IAA also includes opportunities (and mandatory funding) for meaningful public and Indigenous participation in the process.
If, however, the IAA is found to be unconstitutional, then CELA’s client communities may be deprived of their current IAA rights to present their opinions, perspectives and evidence to federal decision-makers on whether or not proposed major projects in Ontario should be approved, or whether stringent approval conditions should be imposed to prevent adverse environmental effects.
Moreover, CELA notes that Ontario’s recently amended Environmental Assessment Act (EAA): (a) is considerably weaker than the IAA (i.e. no statutory requirement in the EAA to assess cumulative effects); (b) lacks mandatory funding to facilitate public and Indigenous participation; and (c) applies to far fewer types of projects than the IAA. For example, while several different types of mines are subject to the federal IAA, Ontario mines are not currently designated as projects to which the EAA automatically applies.
In any event, as we await the Court’s opinion on the IAA, CELA will continue to identify and pursue other intervention opportunities which involve legal, jurisdictional or constitutional issues that go to the heart of CELA’s legal aid mandate.