Law Times

Law Times • march 30, 2009 FOCUS PAGE 9 it has to undergo an environmental as- sessment. Sometimes, in fact, two en- vironmental assessment processes take place — one federal and one provincial. Now, with the economy slowing and he province builds highway in- terchanges every year, but if a project receives federal funding, Feds vow to streamline environmental assessments T BY GLENN KAUTH Law Times the government aiming to stimulate growth through infrastructure projects, federal officials are vowing to streamline those procedures. Critics, of course, say the changes essentially gut years of prog- ress on evaluating projects for their envi- ronmental impacts before shovels hit the ground. "It's pretty scary and it's pretty disap- pointing to a lot of us who have been in the environmental assessment game for decades," says Rick Lindgren, an Ottawa- based lawyer who acts as counsel for the Canadian Environmental Law Association. Earlier this month, Environment Minister Jim Prentice unveiled a list of regulatory changes to the Canadian En- vironmental Assessment Act that will remain in effect until 2011. In the mean- time, officials will also work on a more comprehensive review of the act. Key to the amendments is an expanded list of ex- clusions for projects deemed to have little environmental impact. They include: • public transit projects; • highway overpasses; • road, highway, or bridge widenings; • water treatment facilities; • buildings for purposes such as providing office space, medical facilities, educa- • modifications to buildings to improve energy efficiency. For Bill McNaughton, a partner and national leader of Borden Ladner Gervais LLP's environmental practice group, the regulatory changes are welcome given concerns that planned infrastructure projects might face long delays due to the environmental assessment process. "The interesting thing I think is [that] clearly the goal is to ensure that we as a society have protected the environment while getting these things underway," he says. With highway interchanges, for ex- ample, the prime impact from building them is increased runoff that can dam- age nearby creeks. But engineers already have to take that concern into account, particularly if the area falls under a management plan. For those areas that don't, existing environmental laws will still apply, McNaughton notes. For the exemption to apply to projects lying in a sensitive area protected by the federal government, projects will have to cost less than $10 million, according to the regulations. Besides expanding the list of exclu- sions, the changes also aim to eliminate duplicating federal and provincial assess- ment processes. As a result, the federal government can substitute its own review for a provincial one as long as it considers the issues set out in the act. Federal au- thorities will still have decision-making authority over the project based on a pro- vincial report. But Lindgren, while noting he ap- tional services, or cultural events; and on hold due to overlapping assessment regimes. Both the federal and provincial statutes allow for a harmonized process, something that reduces duplication. The problem, he adds, is that officials may not be taking advantage of that option. "In fact, both statutes allow for it. I think that provision has been underutilized to some extent in Ontario." At the same time, the Ontario gov- ernment has put a six-month time limit on assessments of public transit projects, he points out. "We've already fixed that problem. There already is a streamlined process." Lindgren adds that despite those having moves, preciates the need for stimulating the economy, says it's a myth that projects are BLG who heads up the firm's regional en- vironmental law group in Toronto, says that despite rules allowing for harmo- nized procedures, assessments can often take a long time because both levels of government prepare their own reports. "You still have duplication. It's just a form of co-ordinated duplication," he says. Now, however, federal authorities would make their decision on a project's fate based on a provincial report, accord- ing to the regulations. McNaughton also points out that project proponents have found the act and federal assessment regimes is ap- propriate given their differing consti- tutional jurisdictions. The provincial government, for example, has no say over many fisheries or aboriginal mat- ters that are the purview of federal authorities. "It's beyond the constitu- tional competence of the government of Ontario," he says. But Rick Coburn, another partner at separate provincial rather onerous since its passage in 1992. In particular, the fact that it covers ev- erything from projects receiving federal funding to those involving a federal property transfer or federal regulatory approval has meant it applies to a broad range of proposals. "The onerous nature of it comes from the scope of it," he says. "It captures so many things that you get things pulled into it that realistically aren't going to have any environmental impact." Lindgren, however, argues that en- vironmental assessments have value be- yond looking solely at factors such as mitigating the effects of a project, par- ticularly since they require considering "better or more informed alternatives" to a proposal. As a result, he expects the reg- ulatory changes will meet big resistance. "We'll oppose it vigorously," he says, ar- guing the changes will reverse progress on environmental protection. "To use a hockey analogy, the gloves are off." The amendments followed weeks of musing by federal Transport Minister John Baird that streamlined assessments were necessary in order to relieve back- logs in spending infrastructure funds. Even before the latest changes, the government introduced changes to the Navigable Waters Protection Act in its January budget to reduce environ- mental projects affecting waterways. But for Lindgren, a major problem is what he says was the lack of consultation with environmental groups. assessment requirements for "That concerns me because they're talk- ing about fundamentally redrafting the en- vironmental assessment regime." LT Superior Court shoots down Inco orders BY GLENN KAUTH Law Times (Environment), dealt with the manager's refusal to agree to an interview with a ministry inves- tigator following a 2007 fire at Hazardous Waste Warehouse of Clean Harbours Canada Inc. in Thorold. It broke out after an explosion. The plant processed waste lithium, a highly explosive substance, from old batteries, but fire investigators weren't able to determine the cause of the blaze, according to court documents. In response to the refusal by the manager, Michael Branch, to answer questions, the investi- gator got an order from a justice of the peace under the Environ- mental Protection Act to force him to comply. He relied on a section of the act that authorizes an investigator "to use any de- vice, investigative technique or procedure, or to do any thing described in the order if the jus- tice is satisfied by evidence un- der oath that there are reason- able grounds to believe that an offence under this act has been or will be committed. . . . " Investigators have used those the Environment investigators will have a harder time trying to use them after the Ontario Superior Court ruled it couldn't compel a facility manager to give evidence. The case, Branch v. Ontario E nvironmental lawyers call them Inco orders. And now, Ministry of words to justify getting order to compel people to provide evi- dence for years, lawyers say. The government included them in the act in 1998, and since then comments made in obiter in a high-profile case against Inco Ltd. have added weight to in- terpretations that the law allows for such techniques. That's why they're called Inco orders, says Frank Addario, a partner with Sack Goldblatt Mitchell LLP in Toronto who acted for Branch. In the end, Branch applied to the court for a judicial review of the order and won after consider- ation by justices Katherine Swin- ton, Janet Wilson, and Denise Bellamy of the proper interpreta- tion of the act. While the pros- ecutor argued the law's reference to investigative techniques justi- fied questioning witnesses, the judges noted that doesn't neces- sarily include forcing someone to answer questions. "The ques- tion in this application for judi- cial review is whether a justice of the peace can compel answers to questions by witnesses in a provi- sion which deals with the grant of authority to investigators to use an 'investigative technique.' That is not obvious from the Law Specialists*on Your Team! Our team of environmental lawyers includes 5 Environmental Law Specialists* Get Our Environmental w Specialistson Your Team! Get Our Environmental We help you help your clients. Call us. words of the provision," Swinton wrote. "I think it's clear that if the government wants to give those powers to investigators, there is a straightforward path to fol- low," says Addario, who notes that other provincial statutes, such as the Ontario Securities Act, spell out the rules by which an investigator can force some- one to answer questions. At the same time, those laws include provisions for review of a com- pulsion order on the grounds that the questioning might be too broad or irrelevant or violate privilege, Addario adds. In the judgment, Swinton pointed out legislative debates at the time the former government amended the act indicated that in- tent wasn't to allow investigators to compel witnesses to speak to them. In fact, much of the discussion in- volved giving them the power to stop illegal waste dumping through surveillance and tracking tech- niques such as installing devices on trucks. She also disagreed with min- istry lawyers that the words former See Branch, page 12 www.willmsshier.com * Certified by the Law Society of Upper Canada ENVIRONMENT, ENERGY & RESOURCES LAW www.lawtimesnews.com Juli Abouchar 416 862 4836 Doug Petrie John Willms 416 862 4821 Donna Shier 416 862 4822 Marc McAree 416 862 4820 416 862 4835 Law Times #MS07-06B – 7-7/8" x 4-7/8"

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