Posts by Laura Bowman

Federal Court finds Canadian government failed to protect species at risk

March 28th, 2014 by Laura Bowman

Recently, a number of environmental groups represented by Ecojustice brought a series of judicial reviews alleging that the federal government has unlawfully failed to protect four species due to delays: the Pacific Humpback Whale, Nechako White Sturgeon, Marbled Murrelet and Southern Mountain Caribou.

Without a recovery strategy, the species are not fully protected under the federal Species At Risk Act, which depends on the recovery strategy for some protections to kick in. All four species’ habitat lies along the controversial proposed Enbridge Northern Gateway pipeline and shipping route in northern B.C.

In the Enbridge Northern Gateway Pipeline hearings, there were about 34 listed species at risk that the panel considered, most of which did not have protected critical habitat in a recovery strategy. In January, environmental groups started other legal proceedings dealing with endangered species and other issues specific to those hearings.

Read more on rabble.ca

Justice Quinn upholds costs protection for public interest litigants in municipal campaign financing case

January 23rd, 2014 by Laura Bowman

In Lancaster v. Compliance Audit Committee et al., 2013 ONSC 7631 (CanLII) Justice Quinn discussed in detail the principles that should apply to an award of costs against a public interest litigant.  In that case an appeal was brought regarding an audit committee decision not to investigate a campaign finance issue under the Municipal Elections Act.

The elector, Lancaster, made an audit complaint relating to the campaign finances of various individuals and when the audit committee under the Act ended the audit proceedings, appealed to the Ontario Court of Justice under s.81(6) of the Municipal Elections Act.  The Ontario Court of Justice dismissed the appeal.  The elector then appealed to the Superior Court of Justice, who dismissed the appeal again.

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Troubled waters: Lake Simcoe Region Conservation Authority wetland permitting process is questioned

January 22nd, 2014 by Laura Bowman

Could you imagine a process where a developer can get an approval to destroy a provincially significant wetland in the Lake Simcoe Watershed without anyone even knowing about it, and where the approval is virtually guaranteed?

In September 2013, the North Gwillimbury Forest Alliance (NGFA), a pressure-group of residents in Georgina, released a report by planning consultant Anthony Usher on the way the Lake Simcoe Region Conservation Authority (LSRCA) approves developments in wetlands. The report criticizes the process and the policies the LSRCA uses in granting development approvals in and around waterways.

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Do governments have to pay out on their contracts?

October 31st, 2013 by Laura Bowman

In light of debates about the real cost of government contracts, including the $14-billion fighter jets and the $1-billion Ontario gas plant cancellation, it is worth noting what the principles are that govern government contracts.

In principle, the legislatures of each province and territory (Parliament federally) have to approve all appropriations to or payments from the government’s big “one size fits all” bank account, the consolidated revenue fund. This is because of the provisions in the Canadian Constitution, and because of standing orders dealing with money bills in each jurisdiction. In practice, over time the legislative oversight of budgetary matters has weakened (mostly through changes to those same standing orders). These are dealt with through budgets presented first through the speech from the throne to maintain the fiction that all budgets are recommended by the Crown.

This raises an interesting constitutional question: Can the government of the day bind future legislatures to spend money through entering into contracts, whether they be collective agreements, or ordinary contracts to expend money over multiple years? The simple answer to this question is they should not be able to. The principle underlying this is that the government of the day should not, at least in theory, have the power to tell future elected representatives what budgets to pass or not pass or to bind them to do so.

The real answer is more complicated.

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When in doubt, report: Castonguay Blasting upheld at SCC

October 21st, 2013 by Laura Bowman

Last week the Supreme Court of Canada unanimously upheld the Court of Appeal’s decision in the Castonguay Blasting case, which I have previously written about.  Despite numerous critics of the Court of Appeal’s decision from the environmental law bar, the Supreme Court made the right decision and upheld the Court of Appeal’s ruling that all discharges of contaminants are reportable under the Ontario Environmental Protection Act.

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Nesting dolls of “directly affected” in federal law under judicial review

October 18th, 2013 by Laura Bowman

Recently, the Federal Court of Appeal released a decision on a procedural issue in Forest Ethics Advocacy Association v. Canada (National Energy Board), 2013 FCA 236 (CanLII).  Forest Ethics is suing the government over recent changes to the National Energy Board Act which it claims “unreasonably restrict public comment on project proposals.” At issue is a new section introduced in one of the large conservative budget bills which limits participation on issues before the National Energy Board (NEB) to those who are “directly affected.”

In the decision, the Federal Court of Appeal had to decide whether Enbridge and Valero – two oil and gas companies – would have standing to become respondents or intervenors in the case against the government.  Ironically, the court had to interpret section 303 of the Federal Courts Act which also uses the “directly affected” test.

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