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Environmental Law

Precautionary Principle / Environmental Bill of Rights

. 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town)

In 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town) (SCC, 2001) the Supreme Court of Canada, in an historic environmental case, considered the authority of a Quebec town by-law restricting pesticide use to non-cosmetic purposes. The SCC made some general statements on environmental law:
1 L’Heureux-Dubé J. – The context of this appeal includes the realization that our common future, that of every Canadian community, depends on a healthy environment. In the words of the Superior Court judge: “Twenty years ago, there was very little concern over the effect of chemicals such as pesticides on the population. Today, we are more conscious of what type of an environment we wish to live in, and what quality of life we wish to expose our children [to]” ((1993), 19 M.P.L.R. (2d) 224, at p. 230). This Court has recognized that “[e]veryone is aware that individually and collectively, we are responsible for preserving the natural environment . . . environmental protection [has] emerged as a fundamental value in Canadian society”: Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031, at para. 55. See also Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, at pp. 16-17.

....

3 The case arises in an era in which matters of governance are often examined through the lens of the principle of subsidiarity. This is the proposition that law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and to population diversity. La Forest J. wrote for the majority in R. v. Hydro-Québec, 1997 CanLII 318 (SCC), [1997] 3 S.C.R. 213, at para. 127, that “the protection of the environment is a major challenge of our time. It is an international problem, one that requires action by governments at all levels” (emphasis added). His reasons in that case also quoted with approval a passage from Our Common Future, the report produced in 1987 by the United Nations’ World Commission on the Environment and Development. The so-called “Brundtland Commission” recommended that “local governments [should be] empowered to exceed, but not to lower, national norms” (p. 220).

....

33 This Court stated in Hydro-Québec, supra, at para. 112, that Oldman River, supra, “made it clear that the environment is not, as such, a subject matter of legislation under the Constitution Act, 1867. As it was put there, ‘the Constitution Act, 1867 has not assigned the matter of “environment” sui generis to either the provinces or Parliament’ (p. 63). Rather, it is a diffuse subject that cuts across many different areas of constitutional responsibility, some federal, some provincial (pp. 63-64).” ...
. Neamsby Investments Inc. v. Ontario (Minister of the Environment, Conservation and Parks)

In Neamsby Investments Inc. v. Ontario (Minister of the Environment, Conservation and Parks) (Div Ct, 2020) the Divisional Court considered an application for judicial review to 'bump up' from a class environmental assessment (EA) to a individual EA. The court sets out some environmental assessment legal basics:
[7] The EAA applies to a wide variety of projects. The purpose of the EAA “is the betterment of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment.” The EAA requires the proponent of certain projects to conduct an EA. EAs fall into two classes: “individual” EAs under Part II, and “streamlined”, or “class” EAs, under Part II.1.

[8] Individual EAs involve comprehensive oversight by the Minister. Applicants must apply to the Minister for approval to proceed with a project. The Minister may approve or deny the application and impose terms of reference for the EA process.

[9] Class EAs, on the other hand, are “umbrella” EAs that apply to all projects in the class. Class EAs are used for common undertakings like municipal road improvements. The Minister approves the initial class EA. Once the Minister approves the class EA, the EA process for projects falling within the class is streamlined. The proponent of a class project need only comply with the requirements of the class EA. Class EA’s require a proponent to self-monitor compliance with the terms of the class EA.

[10] The road widening project in issue here involves infrastructure improvements subject to a class EA. This means that the road widening project need not undergo the more specialized individual EA process. The Municipal Engineers Association’s Municipal Class Environmental Assessment (“MCEA”), under which the Road Project is proceeding, is an approved class EA. Under the MCEA, there are four schedules of undertakings, ranked according to degree of environmental impact. The Road Project falls under Schedule C of the MCEA.

[11] Under s. 16 of the EAA, the Minister can order that an undertaking proceeding under a Part II.1 class EA proceed instead under a Part II individual EA process:
16(1) The Minister may by order require a proponent to comply with Part II before proceeding with a proposed undertaking to which a class environmental assessment would otherwise apply.
[12] Such an order is commonly called a “bump-up” order. It is the Minister’s denial of a request to bump-up the class EA to an individual EA which is at issue in this proceeding. When deciding whether to bump-up a class EA process to an individual EA process, the Minister must consider these factors under s. 16(4) of the EAA:
1. The purpose of the Act.

2. The factors suggesting that the proposed undertaking differs from other undertakings in the class to which the class environmental assessment applies.

3. The significance of the factors and of the differences mentioned in paragraph 2.

4. Any reasons given by a person who requests the order.
[13] The Minister can make a bump-up order in response to a request from any person or on his own initiative. When deciding a bump-up request, the Minister has four options:
1. Grant the request and make an order requiring a proponent to comply with Part II before proceeding with the proposed undertaking (EAA, s. 16(1));

2. Refuse the request but make an order imposing additional conditions in addition to those imposed by the class EA (EAA, s. 16(3));

3. Refer the matter subject to the request to mediation (EAA, s. 16(6));

4. Refuse the request without making any order (EAA, s. 16(8)).



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