September 2020 Bulletin

Environment is a Social Justice Issue

We are often asked what the environment has to do with providing legal aid to disadvantaged communities. The environment has always been, and will always be, a social justice issue.

When CELA was formed in the early 1970’s, there was a high level of awareness amongst the public that issues such as pesticides, siting of landfills, and air and water pollution were both environmental and social justice issues that needed to be addressed through legislative reform, access to justice, and education.

Unfortunately, over the years the understanding of that intersectionality has waned on the part of too many people. CELA has been pursuing its mandate as a specialty legal aid clinic focused on environmental issues throughout its 50 year mandate, and continues to represent and advocate for the vulnerable communities who remain unfairly impacted by environmental problems.

As we deal with large and small scale tragedies during the COVID-19 pandemic both globally and locally, these issues are being brought to the forefront.

This is especially true for Indigenous communities, where water security is made even more critical by the pandemic. CELA continues to work with Indigenous communities, most recently hosting a meeting between Indigenous leaders and community members, and the United Nations Special Rapporteur on Hazardous Substances and Wastes, whose report clearly stated that Indigenous communities are being discrimated against.

In the Thames River Watershed, CELA has partnered with the Chippewas of the Thames First Nation, the Oneida Nation of the Thames, and the Munsee-Delaware Nation (CMO) to undertaken a collaborative, community-based project to identify threats to source waters and develop legal tools and policy aimed at their protection.

Through programs like RentSafe, partnerships with the Canadian Partnership for Children’s Health and Environment, and the founding of networks such as the Low-Income Energy Network, CELA endeavours to level the playing field so that people who don’t have access to the halls of power can still receive justice.

Read the full blog from CELA’s Executive Director, Theresa McClenaghan, on our website.

Meeting between Indigenous leaders and community members, and the United Nations Special Rapporteur on Hazardous Substances and Wastes

CELA In the Courts

Update on Legal Challenges to Ontario’s Bill 197

After the Ontario legislature enacted omnibus Bill 197 without any public notice or comment opportunities, judicial review applications were filed by two Ecojustice clients and five CELA clients. A third judicial review application regarding Bill 197 was recently commenced by a number of First Nations on constitutional grounds. Like the two other applications, CELA’s judicial review application addresses Bill 197’s controversial changes to the Environmental Assessment Act.

These changes to Ontario’s key environmental planning law are of particular concern to CELA’s clients because, among other things, they impose new restrictions (and create uncertainty) on how the Act is applied to proposed undertakings, and terminate long-standing public safeguards in the EA process in relation to infrastructure projects.

It is anticipated that the applications will be heard by the Divisional Court in April 2021.

Supreme Court to Rule on Federal Role in Pricing Carbon

Appeals by Saskatchewan, Ontario, and British Columbia on the constitutionality of the federal Greenhouse Gas Pollution Pricing Act (GGPPA) were heard by the Supreme Court of Canada earlier this month.

The GGPPA‘s constitutionality had been upheld in separate reference opinions by appellate courts in Saskatchewan and Ontario on the basis of the national concern doctrine under section 91 of the Constitution’s peace, order and good government clause. But Alberta’s highest court found the GGPPA unconstitutional earlier this year in a reference opinion that prompted British Columbia’s appeal to the Supreme Court.

The challenge to the GGPPA is crucial for CELA clients because climate change is, at its core, an equity issue. Low-income and vulnerable communities are disproportionately impacted by climate change, despite being the least responsible for it. CELA lawyers, representing environmental and faith organizations, had intervened in the Saskatchewan and Ontario appellate courts and again before the Supreme Court in support of the GGPPA‘s constitutionality on the basis of the criminal law power. Our argument would protect the jurisdiction of both levels of government to act on climate change.

Besides the main parties in the appeals, the attorneys general for Saskatchewan, Ontario and Alberta who opposed the GGPPA‘s constitutionality, and the attorneys general for Canada and British Columbia, who supported the GGPPA‘s constitutionality, the case attracted interventions from three other attorneys general (Quebec, New Brunswick, and Manitoba), and approximately two dozen indigenous organizations, environmental, health, labour, youth, and taxpayer groups, municipalities, provincial crown corporations, and others.

The Supreme Court reserved its judgment on the appeals, which is not expected to be released for several months.

Fall Leaves. Photo Credit – Dominic Ali

CELA Involved in Mega-Landfill Test Case

CELA represents the Oxford People Against the Landfill (OPAL) Alliance in an environmental assessment (EA) of a large proposed landfill in a quarry located in southwestern Ontario. If approved, the site would receive approximately 1 million tonnes/year of solid waste and cover material over the next two decades. OPAL has identified various concerns about potential air quality impacts, groundwater contamination, drinking water threats, surface water pollution, and other environmental and health risks. On behalf of our client, CELA has critically reviewed the proponent’s draft EA, which has become an important test case under new landfill-related provisions in Ontario’s Environmental Assessment Act.

Supreme Court of Canada Upholds Ontario’s Anti-SLAPP Provisions

On September 10, 2020, the Supreme Court of Canada released a unanimous landmark decision in 1704604 Ontario Limited v. Pointes Protection Association et al. The case involved a strategic lawsuit against public participation (SLAPP). The Court upheld Ontario’s Anti-SLAPP law and provided helpful guidance in the proper interpretation and application of the provisions. CELA along with other environmental groups was extensively involved in the enactment of anti-SLAPP legislation in Ontario. Further details about the decision are available on CELA’s blog.

The Constitutional Reference on Canada’s Impact Assessment Act – Why it Matters to CELA Clients

On behalf of three clients, CELA is participating in a constitutional reference regarding the federal Impact Assessment Act, which establishes an information-gathering and decision-making process for major projects (e.g. mines, pipelines, nuclear waste facilities, etc.) that may affect areas of federal jurisdiction. CELA lawyer Richard Lindgren has prepared a blog that explains the parties’ positions in this national test case.



CELA Opposes LPAT’s Increase to Appeal Fees as a Barrier to Access to Justice

The Local Planning Appeal Tribunal’s (LPAT) fees have recently increased to an astounding $1,100. The imposition of such a significant filing fee will dissuade individuals and citizens groups from launching legitimate appeals. LPAT should immediately reverse the increases to filing fees at the tribunal. LPAT should also institute a fee waiver process for low-income individuals or citizens groups with limited funds to ensure access to justice. Read the full blog post from CELA counsel Jacqueline Wilson.

We Need Our Conservation Authorities

In Winter 2020, WWF-Canada, Environmental Defence and Canadian Environmental Law Association partnered to develop a survey for researchers in Ontario to better understand the importance of conservation authority water monitoring data.

Following the survey, Environmental Defence and CELA developed a primer report that explains the research survey and provides an overview of the key results from our survey, specifically around locally mandated programs and water monitoring data collected by conservation authorities. These programs include water monitoring (both quality and quantity), climate change adaptation like tree planting and other programs such as wetland restoration.

Call for Greater Racial Representation Amongst Federal Court Judges

CELA recently joined 36 bar associations and legal organizations from across the country in signing a letter to Minister of Justice and Attorney-General of Canada, Hon. David Lametti, urging him to take swift action to rectify the historic and stark racial imbalance among Canada’s federal court judges –including the Federal Court, Federal Court of Appeal and Supreme Court of Canada.

Review of Radioactive Waste Policy Framework

Building on a briefing session held in June calling on the Canadian Nuclear Safety Commission (CNSC) to enhance its policies for radioactive waste, CELA recently signed on to two letters authored by Nuclear Waste Watch. The letters to Prime Minister Trudeau and Minister O’Regan ask the federal government to ensure that Canada adopts a socially acceptable policy and associated strategy for dealing with the management of radioactive wastes in Canada.

CELA’s Executive Director Theresa McClenaghan recently spoke with CBC about the many pitfalls associated with modular nuclear reactors, including the creation of radioactive waste.

Public Comment Opportunities

Whenever possible, CELA shares notice of opportunities for you to comment on provincial and federal matters. You do not need to be expert on these matters – a simple letter or email highlighting your values and what matters to you, can make a significant impact on the decision-making process.

Nuclear Matters – From Mines to Power Plants

Starting in November 2020, Canada’s nuclear safety regulator will commence a series of meetings to review the annual regulatory oversight of nuclear facilities, from uranium mines to nuclear power plants. Once the regulatory oversight reports written by Commission staff are released in October 2020, a 30 day window for public comment will commence. A full list of meetings and notices (with deadlines and further details) are online. With participant funding, CELA will be intervening in these matters specifically to review the adequacy of environmental protection measures and emergency measures for those living around Canada’s nuclear generating sites.

Environmental Assessment in Ontario

Ontario has released a proposed list of projects that will be subject to comprehensive environmental assessment under the Ontario Environmental Assessment Act (EAA). The public is invited to submit comments on the proposal via the Environmental Registry or direct email until November 10, 2020. In the coming months, the Ministry of Environment, Conservation and Parks will be developing a second proposed project list for streamlined environmental assessments. To learn more about Ontario’s environmental assessment reform efforts, read CELA lawyer Rick Lindgren’s recent article. In October, CELA will be preparing and web-posting a detailed critique of Ontario’s proposed regulatory list of projects.

Monarch butterfly, Inglewood, Ontario. Photo Credit – Linda Pim

Virtual Opportunities

Water & Health: A 2-Part Webinar Series

The second in our two-part series about water and human health, hosted in partnership with the Ontario Nurses for the Environment Interest Group, is taking place this Thursday, October 1 from 1:00-2:00pm ET. Registration is required.

The session will look at the Walkerton drinking water tragedy and inquiry. Presenters Theresa McClenaghan and Bruce Davidson will talk about the health impacts of tainted water and government reaction to the community’s water crisis.

Participants are encouraged to watch the first webinar of the series featuring Rachel Arsenault’s presentation on the Indigenous Relationship to Water, available on CELA’s website.

Environmental Themes of Our Times – Virtual Book Club

CELA’s monthly book club met in September to discuss Robin Wall Kimmerer’s Braiding Sweetgrass. For October, the club will discuss the Parable of the Sower, by Octavia E. Butler – a novel set in the 2020s where climate change has led to society’s collapse.

Join the conversation on Tuesday, October 20th at 7pm ET; registration is required.